JEM! 

EVAN  L  REESE 


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Commentaries  on  the  Law 


IN 


SHAKESPEARE 


With  Explanations  of  the  Legal  Terms  used  in  the  Plays, 

Poems  and  Sonnets  and  a  Consideration  of 

the  Criminal  Types  Presented. 

ALSO    A    FULL   DISCUSSION    OF   THE 
BACON-SHAKESPEARE  CONTROVERSY 


BY 

EDW.  J.WHITE 

Author  of  "Mines  and  Mining  Remedies, ""Personal  Injuries  in  Mines, 

"Personal  Injuries  on  Railroads,"  "Legal  Antiquities,"  Editor 

"Third  Edition  Tiedeman  on  Real  Property,"  etc. 


SECOND  EDITION. 


THE  F.  H.  THOMAS  LAW  BOOK  CO. 

ST.  LOUIS,  MO. 

1913 


:  t.'.cfcpyfig^'iaii  : 

EDWARD  J.  WHITE 

Copyright.  1913 

by 

EDWARD  J.  WHITE 


IN  MEMORIAM 


What  folly  I  commit,  I  dedicate  to  you." 

Troilus  and  Cressida,  Act  III.,  Scene  II. 


To  Mary  A.  Wadsworth, 

of  Columbia,  Missouri, 

a  most  profound  student  of  Shakespeare,  Shakespearian  lecturer 
and  author  of  "Shakespeare  and  Prayer,"  whose  friend- 
ship and  encouragement  prompted  the  collabora- 
tion of  these  Commentaries,  the  work  is 
respectfully  inscribed,   with  the 
Author's  admiration  and 
regard. 


901586 


PLAN  OF  THE  WORK. 

The  plan  followed  in  presenting  the  law  of  the  various 
plays  is  to  quote  the  verse  containing  the  law  presented, 
under  an  appropriate  heading,  reference  to  which,  in  the 
index,  will  give  ready  access  to  the  verse  containing  the 
law  referred  to.  As  the  various  plays  and  the  law  in 
each  is  also  presented  in  the  regular  order,  by  reference 
to  the  body  of  the  work,  the  various  propositions  of  law 
contained  in  each  play,  can  be  found.  To  avoid  the  use- 
less repetition  of  various  law  terms  presented  in  the  dif- 
ferent plays,  under  each  heading  will  be  found,  in  the 
foot  notes,  the  different  references  to  the  same  law  term 
or  proposition,  occurring  in  the  different  plays.  Thus 
the  law  of  the  plays  will  be  found  by  either  of  these  cross 
references,  i.  e,  by  referring  to  the  plays  in  the  order  of 
their  publication,  or  by  reference  to  the  index  and  table  of 
contents  for  the  law  term  or  proposition  desired.  This  is 
the  only  practical  method  of  presenting  the  subject,  so 
that  it  can  be  readily  handled  by  both  laymen  and  law- 
yers, and  it  is  hoped  that  the  method  followed  will  be 
found  convenient. 

E.  J.  W. 
Kansas  City,  Mo.,  1913. 


THE  BACON-SHAKESPEARE  CONTROVERSY. 

HISTORY  OF  THE  VAGARY. 


Cause  and  Basis  The  claims  of  those  who  contend  that 
of  the  Fallacy.  Lord  Francis  Bacon  was  the  author  of 
the  plays  of  the  immortal  Shakespeare, 
when  a  reason  for  the  existence  of  such  a  doctrine  is 
looked  for,  is  to  be  found  in  the  fact  that  the  hero  wor- 
shipers of  the  Eighteenth  Century  had  created  an  impos- 
sible character  in  the  person  of  Shakespeare,  by  attribut- 
ing to  him  superhuman  knowledge.  These  extreme  claims 
are  responsible  for  the  conclusion  that  no  one  person  could 
have  accomplished  such  miracles  of  knowledge  as  have 
been  attributed  to  him.  It  was  then  but  another  step  from 
the  conclusion  that  he  did  not  possess  the  literary  omni- 
science attributed  to  him,  to  the  discovery  of  one  capable 
of  such  accomplishments. 

The  fond  Shakespearian  Commentators,  therefore, 
with  their  absurd  claims  for  the  great  Bard,  are  respon- 
sible for  the  refutation  of  such  claims  and  the  next  unreas- 
onable claim  of  title,  in  another  than  Shakespeare.  These 
literary  hero  worshipers,  not  only  in  England  and  Amer- 
ica but  in  Germany,1  as  well,  in  accordance  with  the  na- 
tural German  tendency  to  discover  profound  significance 
in  the  most  trifling  things,2  found  that  Shakespeare  knew 

1Mr.  John  Fiske  states  that  the  key  note  of  the  Baconian  the- 
ory was  first  sounded  by  August  von  Schlegel,  who  claimed  that 
Shakespeare  had  "mastered  all  things  and  relations  of  this 
world,"  and  treated  his  life  as  a  mere  fable.  Piske's  "Forty 
Years  of  Bacon-Shakespeare  Folly,"  in  Atlantic  Monthly  for  No- 
vember, 1897,  page  652. 

1  Lowell,  Literary  Essays,  11,  163. 


Vlll  THE   LAW    IN    SHAKESPEARE. 

the  most  scientific  facts,  connected  with  medicine,  law, 
music,  invention  and  the  then  undiscovered  phenomena  of 
the  universe,  the  psychological  facts  of  human  nature  and 
the  whole  realm  of  literature,  Christianity  and  the  philos- 
ophies of  the  ancients,  better  than  the  most  learned  of 
modern  times. 

The  problem  was  bound  to  be  suggested,  when  and 
where  did  this  son  of  a  country  'Squire,  acquire  this  vast 
fund  of  accurate  and  wonderful  information?  This  in- 
quiry, when  considered  in  connection  with  the  known 
facts  connected  with  his  life,  was  certain  to  result  in  the 
conclusion  that  such  a  vast  fund  of  attributed  wisdom 
could  not  consistently  be  found  in  one  with  such  oppor- 
tunities and  training  and  this  led  to  the  additional  con- 
clusion that,  given  a  man  of  such  attainments,  Shakes- 
peare was  not  that  man. 

The  theory  and  logic,  granting  the  correctness  of  their 
major  and  minor  premise,  is  not  without  reason.  Their 
investigation  evidences  a  great  amount  of  critical  inquiry, 
in  order  to  find  a  cause  equal  to  the  effect  presumed,  an 
individual  capable  of  the  accomplishments  credited  to 
him.  But  the  error  of  this  school  lies  in  accepting  the 
miraculous  results  credited  to  the  man. 

Referring  to  the  current  criticism  of  his  Author,  we 
find  that  Dr.  Samuel  Johnson,  in  his  preface  to  his  edition 
of  the  plays,  published  in  1768,  said:  "His  adherence  to 
general  nature,  has  exposed  him  to  the  censure  of  critics, 
who  form  their  judgments  upon  narrower  principles. 
Dennis  and  Rymer  think  his  Romans  not  sufficiently  Rom- 
an; and  Voltaire  censures  his  kings  as  not  completely 
royal."3  This  distinguished  Editor  and  Commentator 
thus  feels  called  upon  to  apologize  for  the  Poet,  with  the 
explanation  that  ' '  Shakespeare  always  makes  nature  pre- 
dominate over  accident. ' ' 

But,  answering  the  claims  of  the  Idolators,  who  assert 


*  Johnson's  Works,  vol.  II,  p.  84. 


BACON-SHAKESPEARE   CONTROVERSY.  IX 

that  he  had  mastered  the  whole  realm  of  human  knowl- 
edge, this  distinguished  scholar  also  observed:  "Some 
have  imagined  that  they  have  discovered  deep  learning 
in  many  imitations  of  old  writers ;  but  the  examples  which 
I  have  known  urged  were  drawn  from  books  translated 
in  his  time ;  or  were  such  easy  coincidences  of  thought,  as 
will  happen  to  all  who  consider  the  same  subjects ;  or  such 
remarks  of  life  or  axioms  of  morality  as  float  in  conver- 
sation, and  are  transmitted  through  the  world  in  proverb- 
ial sentences."4 

Thus,  it  will  be  seen,  that  the  men  of  letters  of  that 
period,  were  criticising  Shakespeare  for  his  want  of 
knowledge  and  his  ignorance  and  this  learned  and  just 
Commentator,  without  the  halo  of  a  hero  worshiper,  made 
due  explanations  for  his  shortcomings  and  also  explained 
passages  that  attributed  superhuman  knowledge  to  the 
man. 

Additional  evidence  could  be  adduced  to  show  that  the 
first  premise  of  the  Baconizers  is  unsound,  in  accepting 
the  false  claims  of  the  Shakespeare  Idolators,  as  true. 

The  whole  trouble  with  the  proposition  is  that,  in  dis- 
puting the  absurd  claims  of  his  worshipers,  the  reaction- 
aries went  further  and  attempted  to  dispute  his  title  to 
his  works.5  Their  error  consisted  in  ever  believing  or 
accepting  the  false  claims  of  the  Shakespearian  Idolators, 
in  the  first  instance,  and  in  advancing  another  erroneous 
theory  to  defeat  the  error  of  his  followers. 

Once  advanced,  however,  the  fallacy  that  someone  else 
wrote  the  plays,  in  accordance  with  the  common  human 
tendency  to  follow  new  fashions  and  fads — '  'Though  they 
be  never  so  ridiculous,  nay,  let  them  be  unmanly,  yet  are 
follow  'd"6 — like  the  slander,  based  on  hearsay,  so  the 

4  Johnson's  Works,  vol.  11,  p.  106. 

8  See  Fiske's  "Forty  Years  of  Bacon-Shakespeare    Folly,"    in 
Atlantic  Monthly,  November,  1897,  p.  652. 
•Henry  VIII,  Act  I,  Scene  III. 


X  THE   LAW   IN    SHAKESPEAKE. 

suggestion,  put  in  motion,  even  as  the  rolling  snow-ball 
gathered  volume,  until,  with  the  passing  years,  among  a 
certain  credulous  class,  it  reached  the  vast  proportion  of 
a  settled  custom,  and  thus  it  has  continued,  until 

"Mountainous  error  be  too  highly  heap'd, 
For  truth  to  over-peer. '  '7 

Issue  Not  Met  As  it  is  always  an  evidence  of  the  weak- 
By  Abuse.  ness  of  an  argument,  to  indulge  in  in- 

crimination or  abuse,  the  champions  of 
the  issues  upon  both  sides  of  this  controversy  have  too 
frequently  fallen  into  the  error  of  answering  the  just 
observations  of  their  opponents,  based  upon  careful 
research,  by  unjust  criticism  or  abuse. 

The  cause  of  the  Baconians  is  not  at  all  advanced  by 
referring  to   Shakespeare   as   "The   Poacher"   and   the 


TCoriolanus,  Act  II,  Scene  III. 

The  growing  tendency  toward  agnosticism  and  doubt  is  not 
wholly  confined  to  the  works  of  the  masters  in  poetry,  such  as 
Homer  and  Shakespeare,  whose  titles  have  been  questioned  by 
erratic  scholars  of  imaginative  tendencies,  but  the  works  of  art 
of  the  great  painters  are  also  being  questioned  by  doubters  in 
the  artistic  realm,  as  well. 

In  July  of  the  present  year,  someone  laboring  under  an  artistic 
brain-storm,  charged  through  the  London  Post  that  the  famous 
canvas,  by  Rembrandt,  "The  Mill,"  that  for  the  past  centuries 
has  been  recognized  as  one  of  his  worthiest  creations,  was  really 
painted  by  a  Dutchman  named  Seghers.  This  alleged  discovery 
was  based  upon  the  name  claimed  to  have  been  plainly  visible  on 
the  picture,  after  the  removal  of  the  varnish.  A  number  of  emi- 
nent artists  were  ready  to  believe  the  doubt  and  to  rob  Rem- 
brandt of  the  title  that  posterity  had  recognized  in  him,  to  this 
picture.  But  following  this  news,  in  the  Post,  the  eminent  Rem- 
brandt authority,  Dr.  Bode,  was  quoted  by  a  writer  in  the 
Atheneum,  to  the  effect  that  he  had  seen  the  picture  immedi- 
ately after  the  removal  of  the  varnish  and  that  no  such  name 
appeared  on  the  picture.  (Literary  Digest,  Sept.  2,  1911,  pp.  354, 
355.) 


BACON-SHAKESPEARE   CONTROVERSY.  XI 

"Stratford  Butcher-Boy,"8  nor  does  it  answer  the  legit- 
imate suggestions  or  inferences  of  the  Baconians,  based 
upon  honest  research  and  fair  investigation,  to  term  them 
"A  troop  of  less  than  half  educated  people";9  to  assert 
that  Delia  Bacon  was  really  insane,  when  she  wrote  her 
erratic  book;  that  her  imitators  "have  been  chiefly  weak 
minds  of  the  sort  that  thrive  upon  paradox,  closely  akin 
to  the  circle-squarers  and  inventors  of  perpetual  mo- 
tion."10 

When  such  a  scholar  as  Emerson  would  refer  to  the  issue 
as  one  "Opened  so  that  it  can  never  again  be  closed,"11 
at  least  until  positive  proofs  on  the  one  side  or  the  other 
can  be  produced,  it  is  useless  for  either  side  to  indulge  in 
this  species  of  evasion.  Critical  individuals,  of  sceptical 
tendencies  have  and  will  continue  to  seek  a  cause  equal 
to  the  effect  they  find  existing;  a  man,  adequate  to  the 
result  to  be  accounted  for  and  so  long  as  there  is  honest 
research  and  study  of  the  question,  the  inferences  and  the- 
ories of  those  who  doubt  Shakespeare's  authorship,  ought 
to  be  given  the  serious  attention  of  those  who  incline  to 
the  traditional  authorship  of  the  plays  and  it  is  in  the 
interest  of  free  scholarship  and  fair  investigation  that 
the  controversy  should  be  squarely  met  and  carefully 
considered. 


8  Delia  Bacon's  "Philosophy  of  the  Plays  of  Shakespeare  Un- 
folded." 

8Brandes,  "William  Shakespeare.*' 

10  John  Fiske's  "Forty  Years  of  Bacon-Shakespeare  Folly,"  in 
Atlantic  Monthly,  for  November,  1897,  p.  636. 

"This  observation  of  Emerson  noted  a  condition  and  was  not 
necessarily  an  opinion  based  upon  existing  proof.  This  state- 
ment is  in  keeping  with  the  unorthodox  tendency  of  Emerson's 
mind  and  loses  sight  of  the  real  fact  that  a  title  established  by 
contemporary  testimony  and  resting  secure  through  a  lapse  of 
centuries,  cannot  be  over-thrown  by  mere  negative  evidence,  but 
that  the  burden  rests  upon  those  asserting  the  adverse  title  and 
the  proof  must  be  clear  and  convincing  before  the  vested  right 
of  the  ancient  title  will  be  set  aside. 


xii  THE   LAW   IN   SHAKESPEARE. 

However,  the  framing  of  an  issue  is  a  far  different  thing 
from  the  proof  of  such  issue,  by  competent  evidence  and 
the  observation  of  Emerson  that  such  an  issue,  as  to  a 
title  based  upon  credible  contemporary  testimony,  cannot 
be  closed  so  long  as  doubts  may  be  expressed  as  to  such 
title,  is  not  in  keeping  with  the  rule  of  evidence  which 
places  the  burden  of  proof  upon  those  asserting  an  adverse 
title,  to  establish  the  adverse  claim  by  clear  and  convinc- 
ing proof  and  protects  a  title  and  right  vested  and  based 
upon  an  ancient  claim,  against  mere  negative  testimony  of 
the  weakness  of  such  claim. 

The  Syndicate  Those  who  oppose  the  traditional  author- 
Theory,  ship  of  the  plays  of  Shakespeare  ad- 
vance two  principal  theories,  one,  that 
the  plays  were  written  by  a  syndicate  of  poets  and  play- 
writers,  and  the  other,  that  they  were  written  by  one 
man,  but  this  man  was  Bacon,  not  Shakespeare. 

Principal  among  the  advocates  of  the  syndicate  the- 
ory, is  Appleton  Morgan,  of  New  York,  who,  in  1880,  in 
his  book,  the  " Shakespearian  Myth,"  fully  set  forth  the 
theory  of  a  number  of  writers  of  the  plays,  and  Wm.  H. 
Edwards,  and  others  have  followed  this  idea,  in  later 
works.12 

There  is  undoubted  evidence,  in  some  of  the  plays,  of 
the  work  of  other  hands  than  Shakespeare 's.  Henry  VIII 
was,  in  part,  unquestionably  written  by  Fletcher  13  and 
perhaps  parts  of  it  by  Massinger,  yet  there  is  no  doubt 
but  what  the  bulk  of  the  play  was  by  Shakespeare.14  The 
earliest  edition  of  "The  Two  Noble  Kinsmen, "  in  1634, 
ascribed  the  play  to  "The  memorable  worthies  of  their 
time ;  Mr.  John  Fletcher  and  Mr.  William  Shakespeare. ' ' 
These  plays,  as  Doctor  Rolfe  concludes,  were  no  doubt 

12"Shaksper  not  Shakespeare,"  1900,  and  see,  also,  "A  Cam- 
bridge Graduate,"  1903. 
18  Rolfe's  Henry  VIII. 
"Ante  idem. 


BACON-SHAKESPEARE   CONTROVERSY.  Xlll 

begun  by  Shakespeare,  but  for  some  reason  were  laid 
aside  and  left  unfinished  and  patched  out  by  others. 

But  while  some  fragments  of  evidence  may  be  found  to 
show  that  others  than  Shakespeare  may  have  had  a  hand 
in  writing  some  parts  of  some  of  the  plays,  this  is  no  evi- 
dence from  which  his  authorship  of  the  other  portions  or 
of  other  plays  can  be  denied.  Other  collaborators  may 
have  assisted  him,  or  finished  some  few  plays  that  he  left 
unfinished,  but  if  they  did,  they  waived  their  right  and 
title  by  letting  these  plays  be  published  in  his  name.  He 
was  evidently  the  head  and  active  member  of  any  such 
partnership  and  any  others  were  but  silent  and  unknown 
members  of  the  firm.  He  was  the  master  genius  who 
shaped  the  course  of  the  firm's  product  and  rendered  the 
partnership  of  insignificant  importance.  And,  if  problem 
enough  to  determine  what  individual  wrote  the  plays, 
why  multiply  the  difficulties,  by  looking  for  innumerable 
authors?  If  Shakespeare's  title  were  based  upon  a  mir- 
acle, then  it  would  be  a  mere  combination  of  miracles 
that  others  should  have  combined  with  him,  to  produce 
the  plays,  bearing  such  unmistakable  evidences  of  the 
genius  of  one  and  the  same  individual.15 

Origin  of  the  As  the  Wolfian  theory,  asserting  an 

Baconian  Theory,  adverse  title  or  claim  to  the  Homeric 
poems,  originally  suggested  by  the 
philosopher  Vico,  in  a  moment  of  passing  doubt  or  fancy, 
was  later  specially  enlarged  upon  by  the  gifted  Freidrich 
Wolf,16  and  a  respectable  number  of  critics  followed  this 


15  Even  Voltaire  acknowledged  that  "All  the  plays  of  the  divine 
Shakespeare  are  in  the  very  same  taste."  Voltaire's  Works  IX, 
p.  137. 

16  In  the  "Prolegomena  ad  Homerum,"  published  in  1795,  Wolf 
attempted  to  demonstrate  that  the  Homeric  poems  were  not  the 
work  of  any  one  man,  but  were  a  compilation  of  poems  written  by 
various  minstrels  and  sung  in  public  assemblies,  while  the  art  of 
writing  was  but  little  known. 


Xiv  THE   LAW   IN    SHAKESPEAEE. 

fallacy — until  historians  and  scholars  of  succeeding  years 
by  a  great  mass  of  competent  evidence,  successfully  de- 
feated this  theory  and  established  Homer's  title— so  the 
passing  uncertainties  and  doubts  expressed  by  M.  de  Vol- 
taire, in  his  criticisms  of  Shakespeare's  plays,  were  later 
taken  up  and  analyzed  by  Horace  "Walpole  and  with  his 
fervid  imagination  and  little  care  for  the  existing  facts 
of  history,  some  real  doubts  were  expressed  as  to  his  own 
countryman's  distinguished  life  work,  although  he  had 
elsewhere  defended  this  work  against  the  unjust  attacks 
of  this  same  Voltaire.17 

In  the  preface  to  the  second  edition  of  ''The  Castle 
of  Otranto"  and  "Historic  Doubts  on  the  Life  and  Eeign 
of  Richard  III,"  Walpole  first  expressed  the  theories  con- 
nected with  Shakespeare 's  life  and  writings  that  have  led 
to  the  present  Baconian  theory.18 

The  researches  of  Edmond  Malone,  the  respectable 
editor  of  Shakespeare's  plays,  and  literary  detective, 
whose  work  led  to  the  discovery  of  the  Chatterton  and 
Ireland  forgeries,  may  be  said  to  have  thrown  a  mere 
cloud  or  shade  of  uncertainty  over  the  authorship  of 
Shakespeare,  which  has  also  been  utilized  by  the  Bacon- 
ians.19 

And  in  Emerson's  Essay  on  Shakespeare  delivered  in 
1835,  occurs  the  following  passage :  "I  cannot  marry  this 
man  to  his  verse.  Other  admirable  men  have  lived  in 
some  sort  of  keeping  with  their  thought,     *     *     *     but 

"Castle  of  Otranto,  (2nd  ed.)  preface,  20. 

18  Speaking  of  these  works,  in  his  book  "Shakespeare  and  Vol- 
taire," Prof.  Lounsbury,  of  Yale,  observes:  "In  this  very  volume, 
dealing  with  Richard  III,  appears  the  first  example  of  that  long 
line  of  absurd  theories  connected  with  Shakespeare's  life  and 
writings." 

19  Life  of  Edmond  Malone,  with  Selections  from  his  Manuscript 
Anecdotes,  by  Sir  James  Prior:  Malone's  Genuineness  of  the 
three  plays  of  Henry  VI;  Literary  Digest,  for  July  8,  1911,  p.  61. 


BACON-SHAKESPEARE   CONTROVERSY.  XV 

this  man  is  in  wide  contrast,  *  *  *  Shakespeare  is  a 
voice  merely — who  this  singer  was,  we  know  not." 

These  "Historic  Doubts"  of  Walpole,  Malone's  shade 
of  uncertainty,  brought  out  as  a  result  of  his  researches 
and  Emerson's  unorthodox  query,  suggested  by  his  failure 
to  reconcile  the  life  history  of  Shakespeare,  with  his  work, 
as  a  result  of  which  he  was  agnostic  as  to  the  man's  work 
and  preferred  to  take  the  poet's  name  as  the  mere  syn- 
onym for  the  work  that  was  known  as  his,  may  be  said  to 
represent  the  foundation  for  the  mad  quest  of  Miss  Delia 
Bacon,  who  sought  to  demonstrate,  in  her  "Philosophy  of 
the  Plays  of  Shakespeare  Unfolded,"20  that  Lord  Francis 
Bacon,  rather  than  Shakespeare,  was  the  author  of  the 
plays  known  as  Shakespeare 's. 

But  about  a  year  before  Miss  Bacon's  book  appeared, 
1 '  a  Mr.  William  Smith, "  in  a  privately  published  letter  to 
Lord  Ellesmere,  published  in  London,  in  1856,21  outlined 
his  ideas  concerning  Shakespeare 's  inability  to  have  writ- 
ten the  plays  accredited  to  him,  and  expressed  his  views 
as  to  Lord  Bacon's  excellent  qualifications  for  the  work. 
Miss  Bacon  had  written  a  series  of  magazine  articles  pre- 
ceding her  book,  "however,  and  in  the  book  she  labors  at 
some  length  to  convince  the  public  that  she  was  the  in- 
ventor of  the  Baconian  theory,  and  Fiske22  and  other  his- 
torians seem  willing  to  accord  to  her  the  doubtful  credit 
of  having  originated  the  theory. 

The  observations  that  gave  rise  to  the  "doubts";  the 
1 '  doubts, ' '  upon  which  the  later  theory  is  founded  and  the 
analysis  and  growth  of  this  theory,  are  not  without 
interest. 


20  Published  in  1857. 

21  See  interesting  article  by  John  H.  Clifford,  in  Americana,  Vol. 
XIV,  tit.    "Shakespeare,  Authorship  of." 

22  "Forty  Years  of  Bacon-Shakespeare  Folly,"  by  John  Fiske,  in 
Atlantic  Monthly,  Nov.  1897,  p.  636. 


XVI  THE   LAW    IN    SHAKESPEAKE. 

Voltaire's  Criticism  The  iconoclast  M.  de  Voltaire,  with 
of  the  Plays.  his  aptitude  for  historical  investi- 

gation and  analytical  research,  not- 
withstanding his  known  antagonism  and  unfairness  to- 
ward English  authors,  never  questioned  Shakespeare's 
authorship  of  the  plays,  but  his  criticism  was  leveled  at 
the  grossness  found  mingled  with  the  many  evidences  of 
genius  in  the  plays.23 

He  regrets  that  ''We  find  so  much  more  barbarism  than 
real  genius  in  the  works  of  Shakespeare, '  '24  but  again  ad- 
mits that  "His  genius  pierced  through  the  barbarous 
darkness  of  the  times,  as  that  of  Lope  de  Vaga  did  in 
Spain."25 

In  his  "Ancient  and  Modern  Tragedy,"  forgetting 
this  barbarous  period  in  which  Shakespeare  lived  and 
wrote  and  that  ghosts  were  commonly  believed  in  at  that 
time,  this  matter  of  fact  Frenchman  leveled  this  most  ex- 
travagant criticism  at  Shakespeare,  because  he  introduced 
the  ghost  into  the  play  of  Hamlet :  "It  seems  as  if  nature 
took  pleasure  to  unite  in  the  head  of  Shakespeare  all  that 
we  can  imagine  great  and  forcible,  together  with  all  that 
the  grossest  dullness  could  produce  of  everything  that  is 
most  low  and  detestable. ' ' 26  Then  admitting  that  the 
"ghost  scene"  has  always  had  a  most  stirring  effect  on 
the  English,  in  analyzing  the  plan  of  this  tragedy,  Vol- 
taire suggests  the  quandary  "How  could  so  many  won- 
derful things  be  generated  in  one  head  ?  For  it  must  be 
acknowledged  that  all  the  plays  of  the  divine  Shakespeare 
are  in  the  very  same  taste."27  Thus,  it  will  be  seen,  that 
notwithstanding  his  abuse  of  Shakespeare  for  combining 
in  his  plays  the  most  uneven  facts  of  science,  literature, 

83  But  he  did  not  fail  to  avail  himself  of  Shakespeare's  labors. 
See  Prof.  Lounsbury's  "Shakespeare  and  Voltaire,"  pp.  143,  159. 
24  Works  of  Voltaire,  Vol.  XXX,  p.  59. 

36  Ante  idem. 

26  Works  of  Voltaire,  Vol.  XXXVII,  p.  137. 

37  Tragedy  of  Hamlet,  Voltaire's  Works,  Vol.  XXXIX,  p.  137. 


BACON-SHAKESPEARE    CONTROVERSY.  XVH 

and  the  beauties  of  nature,  along  with  the  obscene  and 
licentious  and  the  superstitions  of  his  age,  the  sceptic 
Voltaire,  while  berating  him  for  many  of  the  same  traits 
that  Voltaire  himself  possessed  cannot  resist  the  tempta- 
tion to  express  a  doubt  as  to  his  ability  to  produce  the 
beauties,  although  willing  to  condemn  him  for  the  author- 
ship of  the  base  or  ignoble  found  in  the  very  same  play. 
But  this  passing  doubt  or  wonder  on  Voltaire's  part  did 
not  even  in  his  dubious  mind  arise  to  the  dignity  of  a 
denial  of  Shakespeare's  authorship  of  the  plays,  for  in 
a  following  paragraph  of  the  same  study,  he  says :  ' '  The 
astonishment  occasioned  by  the  first  wonder  will  cease 
entirely  when  it  is  known  that  Shakespeare  has  taken  the 
subjects  of  all  his  tragedies  from  history  or  romances; 
and  that  he  has  done  nothing  more  than  turn  into  dia- 
logues the  romances  of  Claudius,  Gertrude  and  Hamlet, 
written  entirely  by  Saxo,  the  grammarian,  to  whom  the 
whole  glory  of  the  performance  is  due. '  '28 

This  unbeliever  in  miracles  would  thus  reasonably  ac- 
count for  the  origin  of  the  plays,  by  the  author  to  whom 
they  were  accredited,  rather  than  express  a  doubt  as  to 
Shakespeare 's  authorship,  in  the  light  of  the  known  facts 
of  history  and  contemporary  testimony  and  by  explana- 
tion of  the  seeming  divine  creation  of  the  beautiful  in 
the  plays,  he  preferred  to  answer  the  claims  of  the 
Shakespearian  Idolators  by  citing  the  known  facts  of  his- 
tory to  demonstrate  that  he  was  a  common  purloiner  of 
the  works  of  his  predecessors,  instead  of  questioning  his 
composition  of  the  plays.29 

But  let  us  examine  the  character  of  the  first  witness 
to  express  any  ' '  doubts  "  as  to  the  characters  in  the  plays 


28  Ante  idem. 

29  As  remarked  by  Thackeray  (The  Virginians,  p.  495),  the 
works  of  Shakespeare  commenced  to  grow  vastly  more  popular, 
in  England,  after  M.  de  Voltaire  attacked  him,  notwithstanding 
the  many  barbarisms  that  could  not  but  shock  a  polite  auditory. 


XV111  THE   LAW    IN    SHAKESPEARE. 

of    Shakespeare,    and    then    proceed    to    examine    the 
"doubts"  themselves,  as  history  presents  them. 

Walpole  and  His  Horace  Walpole,  the  first  known 
Historic  "Doubts."  prominent  individual  to  doubt 
Shakespeare's  characters,  expressed 
his  doubts  about  a  century  and  a  half  after  the  plays 
were  written.  If  he  sought  to  express  other  than  mere 
"doubts,"  upon  the  subject  that  he  addressed  himself  to, 
his  expressions  would  of  course  be  incompetent,  because 
purely  hearsay,  but  the  expressions  of  this  first  witness 
are  but ' '  doubts, ' '  at  best. 

But  even  if  the  witness  knew  facts,  instead  of  mere 
"doubts"  or  dreams,  the  faith  with  which  such  doubts  or 
dreams  are  to  be  received  depends,  in  no  small  measure 
upon  the  character,  for  reliability  of  the  "doubter"  or 
dreamer,  himself. 

A  scholar  of  some  attainments,  Walpole  was  rather  a 
traveled  savant,  and  man  of  social  distinction,  than  one 
of  accurate  information  or  reliable  authority  upon  any 
subject.  Living  to  a  ripe  old  age  his  chief  object  was  the 
erection  and  maintenance  of  his  famous  mansion,  "Straw- 
berry Hill"  and  his  principal  literary  production  was  his 
"Letters,"  valuable  only  as  interesting  pictures  of  the 
social  and  fashionable  gossip  of  his  period,  but  admittedly 
marred  by  the  palpable  want  of  truthfulness  running 
through  them.  Judged  by  an  accurate  and  truthful  meas- 
ure of  the  man,  his  "doubts"  upon  such  a  subject  are  of 
but  little  value. 

Speaking  of  the  man,  "Walpole,  the  historian  Macaulay 
says:  "The  faults  of  Horace  Walpole 's  head  and  heart 
are  indeed  sufficiently  glaring.  His  writings,  it  is  true, 
rank  as  high  among  the  delicacies  of  intellectual  epicures 
as  the  Strasburg  pie,  among  the  dishes  described  in 
Almanack  des  Gourmands.  But  as  the  pate  de  foie  gras 
owes  its  excellency  to  the  disease  of  the  wretched  animal 
which  furnishes  it,  and  would  be  good  for  nothing  if  it 


BACON-SHAKESPEARE   CONTROVERSY.  xix 

were  not  made  of  livers  preternaturally  swollen,  so  none 
bnt  an  unhealthy  and  disorganized  mind  could  have  pro- 
duced such  literary  luxuries  as  the  works  of  Walpole. 
#  *  •  rpj^  confirmation  of  his  mind  was  such  that  what- 
ever was  little,  seemed  to  him  great,  and  whatever  was 
great  seemed  to  him  little.  Serious  business  was  a  trifle 
to  him,  and  trifles  were  his  serious  business. '  '30 

In  the  preface  to  the  second  edition  of  his  story,  "The 
Castle  of  Otranto,"  Walpole  apologizes  for  having 
"  offered  his  work  under  the  borrowed  personage  of  a 
translator, ' '  in  the  first  edition.  He  proceeds  at  length  to 
answer  Voltaire's  criticism  of  Shakespeare — although 
entirely  foreign  to  his  subject — and  asserts  that  "this 
great  master  of  Nature,  Shakespeare,  was  the  model  I 
copied."  He  also  professes  that  "I  had  higher  authority 
than  my  own  opinion  of  this  conduct ' '  and  closes  his  pref- 
ace as  follows :  ' '  The  result  of  all  I  have  said,  is  to  shel- 
ter my  own  daring  under  the  canon  of  the  brightest 
genius  this  country,  at  least,  has  produced.  *  *  *  I 
should  be  more  proud  of  having  imitated,  however  faintly, 
weakly,  and  at  a  distance,  so  masterly  a  pattern,  than  to 
enjoy  the  entire  merit  of  invention,  unless  I  could  have 
marked  my  work  with  genius,  as  well  as  with  originality. ' ' 

In  this  preface  Walpole  does  not  express  the  slightest 
doubt  of  the  authorship  of  the  plays  of  Shakespeare.  He 
defends  the  plays  from  the  criticism  of  Voltaire,  whom  he 
classes  as  a  genius,  "but  not  of  Shakespeare's  magni- 
tude." His  modeling  of  his  romance  after  Shakespeare's 
works  was  the  explanation  of  the  ideal  that  he  had  en- 
deavored to  approach  in  his  work,  as  did  Rowe,31  and 
other  authors  of  the  period,  for  an  acquaintance  with  the 
plays  produced  veneration  for  the  great  "monarch  of 
thought ' '  and  they  adopted  him  as  their  standard. 


S0Macaulay's  Essay,  on  Letters  of    Horace    Walpole;    Seely's 
Horace  Walpole  and  his  world;  Dobson,  Horace  Walpole. 
31  Johnson's  Life  of  Rowe,  348,  350. 


XX  THE    LAW    IN    SHAKESPEARE. 

But  if  the  explanation,  in  this  preface,  by  any  stretch 
of  the  imagination,  could  be  drawn  into  a  statement  that 
in  publishing  his  book  in  the  name  of  another,  he  had  but 
followed  the  course  of  Shakespeare,  this  would  be  a  state- 
ment wholly  without  facts  to  support  it,  for  Shakespeare 's 
plays  were  published  in  his  name  and  it  is  the  man 
Shakespeare  himself,  upon  whom  he  bestows  his  fulsome 
praise,  as  the  author  of  the  plays. 

In  "  Historic  Doubts  on  the  Life  and  Reign  of  King 
Richard  III,"  Walpole  speaks  of  Shakespeare's  tragedy 
of  that  reign  as  "a  tragedy  of  imagination";32  he  pro- 
ceeds to  show  that  Richard  was  not  guilty  of  the  crimes 
that  Shakespeare  imputes  to  him ;  shows  that  while  Rapin 
conceived  doubts,  but  failed  to  pursue  them,  he  rather 
turned  from  certainties  to  doubts33  and  finally  sums  up 
Shakespeare 's  tragedy  as  follows : 

"It  is  evident  from  the  conduct  of  Shakespeare,  that 
the  house  of  Tudor  retained  all  their  Lancastrian  preju- 
dices, even  in  the  reign  of  queen  Elizabeth.  In  his  play  of 
Richard  the  Third,  he  seems  to  deduce  the  woes  of  the 
house  of  York  from  the  curses  which  queen  Margaret  had 
vented  against  them;  and  he  could  not  give  that  weight 
to  her  curses  without  supposing  a  right  in  her  to  utter 
them.  This,  indeed,  is  the  authority  which  I  do  not  pre- 
tend to  combat.  Shakespeare's  immortal  scenes  will  exist, 
when  such  poor  arguments  as  mine  are  forgotten."34 

In  denying  that  the  two  princes  were  murdered  in  the 
Tower,  he  quotes  from  Lord  Bacon  and  observes : 

"Lord  Bacon  owns  that  it  was  whispered  everywhere, 
that  at  least  one  of  the  children  of  Edward  the  Fourth 
was  living."35 

In  view  of  Walpole 's  quotation  of  Lord  Bacon  for  an 

32  Preface  to  "Historic  doubts  on  the  life  and  Reign  of  Richard 
III,"  p.  13. 

33  Ante  idem.,  p.  21. 

34  Ante  idem.,  p  119,  129. 
36  Ante  idem.,  p.  80 


BACON-SHAKESPEARE    CONTROVERSY.  XXI 

entirely  different  state  of  facts  than  that  which  the  play 
of  Shakespeare  presents,  it  is  difficult  to  conceive  how- 
later  followers  could  connect  Bacon  with  the  authorship 
of  a  play  presenting  facts  he  said  were  not  true,  but  this 
illustrates  how  an  erroneous  theory  once  advanced  will  be 
followed  and  enlarged  upon  by  others. 

Walpole  connects  the  name  of  Lord  Bacon,  with  his 
" Historic  Doubts,"  to  show  that  many  doubted  if  the  two 
sons  of  King  Edward  the  Fourth  were  really  murdered 
in  the  Tower36  and  elsewhere  he  quotes  from  Bacon  to  con- 
firm others  of  his  u doubts"  as  to  other  alleged  crimes  of 
King  Richard.37 

He  does  not  extend  his  speculations  or  doubts  to  the 
authorship  of  Shakespeare's  play  but  contents  himself 
with  the  effort  of  trying  to  disprove  the  crimes  and  per- 
sonal history  of  one  of  the  Poet 's  most  prominent  charac- 
ters, King  Richard  III,  by  fragmentary  bits  of  history  cal- 
culated to  throw  doubt  and  uncertainty  about  the  truth- 
fulness of  this  character,  as  the  play  presents  it. 

Beginning  his  "doubts"  as  a  literary  exercise  to  cure 
a  bad  case  of  idleness,  Walpole  rejected  the  competent  tes- 
timony of  contemporaries,  because  they  "could  know  the 
facts  alleged  but  by  hearsay";38  he  constructed  a  defense 
for  King  Richard  as  a  criminal  lawyer  will  defend  a  guilty 
client,  by  emphasizing  some  small  circumstances  calcu- 
lated to  show  his  innocence  and  use  this  to  cover  up  the 
most  cogent  proof  of  his  guilt,  and  .he  continued  this 
course  until,  by  habit,  as  Sir  Walter  Scott  observed,  his 
"doubts  later  acquired  in  his  own  eyes  the  respectability 
of  certainties,  in  which  he  could  not  brook  controversy.  "w 

36  Ante  idem.,  p.  56. 

37  Ante  idem.,  pp.  63,  66,  75,  93,  105,  106,  131,  136. 

38  Historic  Doubts,  etc.,  p.  128. 

39  Biog.  Notices  and  c,  Horace  Walpole. 

See,  "An  answer  to  Walpole's  Doubts,"  by  F.  M.  Guidikins,  pub- 
lished in  1768,  London  Monthly  Rep.  1768,  Vol.  1,  p.  401.,  and  also, 
"Remarks  on  Walpole's  Doubts,"  in  Archaeologia  (Vol.  II),  by 
Rev.  Robt.  Mashers,  1772. 


XX11  THE   LAW   IN    SHAKESPEAEE. 

Of  course  it  was  an  easy  matter  for  such  writers  as 
Delia  Bacon,  to  apply  Walpole 's  arguments  concerning 
the  crimes  and  life  of  Richard  III  to  the  author  of  the 
tragedy,  for  it  is  but  a  step  from  the  denial  of  the  work 
of  the  creator  to  the  denial  of  the  creator,  and  many  of 
skeptical  tendencies  are  always  ready  to  take  this  step. 

Delia  Bacon's  Book,  While  Walpole  had  expressed 
Presenting  the  " doubts,"  as  to  one  of  the  char- 

Baconian  Theory.  acters  of  Shakespeare,  a  century 

later  many  of  his  arguments 
were  adopted  and  presented  by  Miss  Delia  Bacon  of  Tall- 
madge,  Ohio,  in  her  "  Philosophy  of  the  Plays  of  Shakes- 
peare Unfolded,"  in  which  she  zealously  advocated  the 
theory  that  Sir  Francis  Bacon — said  to  be  a  distant  rela- 
tive of  Miss  Bacon — was  the  author  of  the  plays  of 
Shakespeare.  She  may  be  said  to  be  the  first  to  give  this 
idea  currency,  therefore,  although  she  did  not  originate 
the  theory.40 

As  Walpole  warned  his  readers  against  what  he  termed 
his  "literary  prophanation, "  in  their  eyes,  because  of 
their  adherence  to  the  established  and  received  idea  con- 
cerning the  crimes  and  life  of  Richard  the  Third,  so  Miss 
Bacon  expressed  her  doubts  about  being  able  to  shake 
the  faith  of  her  readers  in  the  belief  in  a  character  they 
had  been  taught  to  revere  so  highly  as  they  had  that  of 
Shakespeare. 

Dealing  principally  in  promises  and  announcements  of 
what  will  later  be  presented  when  the  veil  shall  be  finally 
removed,  in  lieu  of  tangible  evidence,  this  author  grounds 


40  "The  earliest  recorded  surmise  that  the  real  author  of  the 
Shakespearian  writings  was  Francis  Bacon,  appears  to  have 
been  that  of  a  'Mr.  William  Smith,'  in  a  privately  printed  letter 
to  Lord  Ellesmere,  in  1856,"  a  year  before  Miss  Bacon's  book  was 
published.  See  article  by  John  H.  Clifford,  in  Encyclopedia 
Americana,  Vol.  XIV. 


BACON-SHAKESPEARE   CONTROVERSY.  XX111 

her  argument  upon  a  deep  hidden  design,  running  through 
all  the  plays,  from  which  she  evolves  her  theory  that  Lord 
Bacon  wrote  the  plays  and  purposely  concealed  his  iden- 
tity. She  concludes  that  but  for  the  clairvoyant  or  spirit- 
ualistic powers  possessed  by  her,  to  ferret  out  this  deep 
laid  plan — to  evolve  something  from  nothing  and  see  that 
which  does  not  exist,  in  fact — that  the  deep  design  would 
be  forever  lost.41 

According  to  Miss  Bacon,  Lord  Bacon,  used  only  such 
language  as  had  double  meanings,  and  under  a  mountain 
of  false  premises  he  buried  his  real  meaning  deep  down 
in  the  subject-matter  of  the  plays  for  selected  auditors 
only,  or  for  "wits  of  such  sharpness  as  can  pierce  the 
veil."42  She  selects  isolated  passages  from  the  plays,  as 
chapter  headings  and  gives  them  hidden  and  mysterious 
interpretations;  assays  to  find  hitherto  undiscovered 
meanings  in  the  Baconian  traditions  and  draws  many 
parallelisms  from  Lord  Bacon's  rhetoric,  when  compared 
to  that  of  Shakespeare;43  unduly  presents  Shakespeare's 
incompetency  and  want  of  fitness  to  write  the  plays  and 
Lord  Bacon's  eminent  qualifications  and  ends  where  she 
began,  without  evidence  to  base  her  conclusion  upon,  that 
Bacon  wrote  the  plays  of  Shakespeare. 

From  the  play  of  Julius  Caesar  she  draws  the  conclusion 
that  it  had  for  its  object  the  destruction  of  tyranny  in 
Government  and  was  prompted  and  shaped,  in  its  dif- 
ferent parts,  by  one  deeply  versed  in  the  science  of  gov- 
ernment and  that  the  author  of  this  play  possessed  wis- 
dom far  superior  to  that  possessed  by  the  Poet.  But  in 
following  the  bent  of  her  wild  theory,  she  fails  to  look  at 
the  plain  and  simple  fact  that  aside  from  the  stage  setting 
and  dramatic  arrangement  of  this  play,  Shakespeare  re- 
produced, almost  as  an  entirety,  the  history  of  the  assas- 


41  "If  this  design  be  buried  so  deeply  is  it  not  lost  then?"  (Phil, 
of  the  Plays  of  Shakespeare  Unfolded,  p.  31.) 

42  Ante  idem.,  p.  59. 

48  Ante  idem.,  pp.  63,  100. 


XXIV  THE   LAW   IN    SHAKESPEABE. 

sination  of  Caesar  as  given  by  Plutarch  and  other  histo- 
rians. Read  in  connection  with  Plutarch's  Lives,  these  at- 
tributed deep  laid  plans  of  statesmanship  must  be  laid  to 
Plutarch,  not  to  the  author  of  this  play. 

These  observations  apply  equally  to  the  alleged  deep 
laid  plans,  which  this  author  finds,  concerning  the  exposi- 
tions on  "Martial  Government,"  and  "Insurrections 
Arguing,"  in  " Coriolanus. "  The  Poet  but  followed  the 
description  of  this  stern  old  Patrician  as  portrayed  by 
Plutarch  and  there  is  nothing  so  abstruse  or  unnatural  in 
this  play  as  to  justify  any  question  of  Shakespeare 's  abil- 
ity to  write  it. 

She  presents  the  reference  to  astrology,  in  the  tragedy 
of  Lear,  to  show  that  Bacon  used  practically  the  same 
reference,  in  his  works,44  but  it  does  not  follow,  from  this, 
that  Bacon  wrote  this  tragedy,  which  is  so  entirely  differ- 
ent from  the  things  that  he  was  known  to  write.  The 
ideas  of  the  scholars  of  this  period,  on  such  subjects, 
were  current  topics  of  the  day,  and  those  who  moved  in 
the  same  circle  were  no  doubt  familiar  with  the  ideas  and 
expressions  of  other  contemporaries  on  the  same  subject. 
And  these  observations  apply  to  the  other  instances  from 
the  plays  where  the  few  scattered,  random  thoughts  are 
taken  up  and  compared  to  similar  expressions  used  by 
Bacon.  She  admits  that  Bacon  wrote  so  that  King  James, 
"A  man  of  some  erudition,"45  could  not  understand  his 
"Novum  Organum,"  but  she  neglects  to  state  that  the 
King  was  able  both  to  understand  and  enjoy  the  simple 
love  talk  and  truly  human  poetry  and  philosophy  of 
Shakespeare 's  plays. 

In  speaking  of  Jonson's  friendship  for  Shakespeare — 
before  reaching  the  point  where  she  seeks  to  discredit  the 
latter — she  says : 

"It  is  enough  to  say,  here,  that  he  chanced  to  be  hon- 


"Ante  idem.,  pp.  129,  130. 

45  "Philosophy  of  Plays  of  Shakespeare  Unfolded,"  p.  181. 


BACON-SHAKESPEARE   CONTROVERSY.  XXV 

ored  with  the  patronage  of  three  of  the  most  illustrious 
personages  of  the  age  in  which  he  lived.  He  had  three 
patrons.  One  was  Sir  Walter  Raleigh,  in  whose  service 
he  was;  one  was  the  Lord  Bacon,  whose  well  nigh  idol- 
atrous admirer  he  appears  also  to  have  been;  the  other 
was  Shakespeare,  to  whose  favor  he  appears  to  have  owed 
so  much."46 

Strange,  isn't  it,  that  this  former  "butcher-boy  and 
poacher  "reached  such  a  position  that  he  would  be  classed 
along  with  Sir  Walter  Raleigh  and  Lord  Bacon — two  of 
the  most  distinguished  scholars  of  the  day — and  yet  be  so 
utterly  incompetent  to  perform  work  for  which  they  were 
so  well  qualified? 

But  Miss  Bacon  not  only  admits  that  Shakespeare  was 
a  patron  on  a  par  with  her  idealized  Lord  Bacon,  when  it 
came  to  Jonson's  friendship,  but,  as  if  *  piqued  because 
Jonson  had  spoken  with  such  affection  for  Shakespeare — 
and  not  of  her  distinguished  kinsman — she  further  ob- 
serves : 

"With  his  passionate  admiration  for  these  last  two 
stopping  only  'this  side  idolatry'  in  his  admiration  for 
them  both,"*7  and  thus  attempts  to  apply  the  testimonial 
of  friendship  from  Jonson  for  Shakespeare  alone  also  to 
her  remote  kinsman.  But  while  thus  willing  to  misquote 
the  testimony  to  assist  her  client 's  cause,  when  it  suits  her 
purpose,  in  the  next  breath,  to  attempt  to  discredit  Shakes- 
peare she  insists  that  because  Jonson  had  not  mentioned 
the  fact  that  Shakespeare  had  met  Bacon,  that  Jonson's 
evidence  of  his  affection  for  Shakespeare  ought  to  be  dis- 
carded, thus  making  his  testimonial  of  friendship  for 
Shakespeare  apply  to  Bacon.  But  this  is  common  for 
special  pleaders  to  abandon,  with  such  freedom,  an  author- 
ity they  elsewhere  invoke  and  it  is  in  keeping  with  the 
common  tendencies  of  such  zealots  to  blow  hot  and  cold 


48  Ante  idem.,  p.  21. 
47  Ante  idem.,  p.  21. 


XXVI  THE   LAW   IN    SHAKESPEARE. 

at  the  same  time,  as  does  this  authoress  who  in  her  intro- 
duction raises  Bacon  to  the  elevated  plain  occupied  by  Sir 
Walter  Raleigh  and  Shakespeare  and  later  resorts  to  Em- 
erson's skepticism  and  meaningless  phrase,  which  she  par- 
aphrases into  the  platitude  that  "this  Pierre  or  William 
is  but  a  sound  when  all  is  done. '  '48 

In  view  of  these  inconsistencies,  is  it  not  far  fetched  to 
conclude  that  Lord  Bacon  wrote  the  plays  anonymously, 
to  avoid  such  punishment  as  that  which  was  meted  out  to 
Sir  Walter  Raleigh?  His  known  writings  on  philosoph- 
ical and  dry  legal  subjects  occupied  the  greater  portion  of 
his  life,  and  his  mind  was  not  engrossed  with  either  trag- 
edy, poetry  or  comedy,  such  as  Shakespeare  was  known 
to  have  written. 

As  if  realizing,  after  writing  560  pages,  that  she  had 
failed  to  establish  a  title  for  her  kinsman  to  Shakespeare 's 
plays,  Miss  Bacon,  in  conclusion  apologizes  because  she 
"has  labored  throughout  under  this  disadvantage"  that 
her  theory  is  "directly  opposed  *  *  *  to  facts  which  are 
among  the  most  notable  in  the  history  of  this  country; 
and  not  only  facts,  sustained  by  unquestionable  contem- 
porary authority,  but  attested  by  public  documents — facts, 
which  history  has  written  with  her  pen  of  iron  on  the 
rocks  forever."49 

And  with  this  admission  of  the  evidence  thus  prepon- 
derating against  her  asserted  title  does  this  special  plead- 
er— so  resourceful  in  occult  and  undiscovered  theories 
and  surmises,  in  the  face  of  such  a  mass  of  credible  testi- 
mony— offer  a  full  confession  and  avoidance  of  these  ad- 
mitted established  facts,  or  does  she  enter  a  general  de- 
nial ?  She  does  neither,  but  follows  in  her  * '  Conclusions, ' ' 
with  a  general  affirmation  and  approval  of  her  opponent 's 
case,  because: 

"The  demonstrated  fact  must  stand.     The  true  mind 


48  Ante  idem.,  p.  50. 

49  "Philosophy  of  the  Plays  of  Shakespeare  Unfolded,"  p.  661. 


BACON-SHAKESPEARE   CONTROVERSY.  XXV11 

must  receive  it.  We  must  take  our  facts  and  reconcile 
them,  if  we  can  and  let  them  take  care  of  themselves,  if 
we  cannot."50 

In  other  words,  a  special  counsel  does  not  guarantee 
his  client's  cause,  but  takes  the  case  as  he  or  she  finds 
it,  subject  to  its  inherent  weakness,  and  when,  as  in  this 
instance,  it  is  impossible  to  establish  a  worthless  claim  to 
another's  property,  one  can  only  abandon  the  cause,  if 
sophistry  will  not  push  the  claim  along,  in  the  face  of  ad- 
mitted facts.    A  pretty  weak  plea,  this. 

By  way  of  further  apology  for  the  weakness  of  her 
client's  cause,  in  the  face  of  her  promises  and  assurances, 
at  the  commencement  of  her  plea,  she  further  observes : 

"  Those  very  facts,  and  those  very  historical  materials, 
on  which  our  views  on  this  subject  have  been  based,  hith- 
erto, are  that  which  is  wanting  to  the  complete  develop- 
ment of  the  views  contained  here. '  '51 

So,  following  the  admission,  by  way  of  concluson,  be- 
cause of  the  abundant  evidence  to  establish  Shakespeare's 
title  and  the  weakness  of  her  client's  cause,  this  special 
pleader  rests  her  cause  rather  upon  the  absence  of  evi- 
dence than  the  real  facts  to  base  her  kinsman's  title  upon, 
and  leaves  the  rest  to  sentiment  and  wild  conjecture. 

Her  client's  cause  must  fall  with  this  admission  of  a 
total  lack  of  evidence  upon  which  to  base  a  claim  of  title 
vested  in  another  by  the  established  proof.  Nor  is  it  a 
legitimate  plea  to  urge,  in  the  absence  of  competent  proof, 
that  the  one  without  title  would  have  asserted  a  claim, 
but  for  fear  of  duress.  Duress  could  not  transfer  a  title 
vested  in  another  and  before  this  plea  could  be  received 
there  must  have  been  a  valid  title  lost,  unasserted  or  re- 
linquished, because  of  coercion  or  fear.  The  condition 
precedent  to  the  assertion  of  such  a  plea  is  the  right  or 
title  in  the  person  for  whom  such  a  plea  is  urged.    Lord 


™  Ante  idem.,  p.  562. 
61  Ante  idem.,  p.  563. 


XXV111  THE    LAW    IN    SHAKESPEARE. 

Bacon's  case  must  fall  on  these  admissions  of  his  repre- 
sentative, in  this  work,  for  nothing  in  the  way  of  tangible 
proof  is  brought  forth  to  sustain  his  claim  to  Shakes- 
peare's plays. 

Growth  of  Issue  The  Baconian  theory,  as  such,  was 
Following  Delia  first  elaborately  advanced  in  the  above 
Bacon's  Book.  named  volume  by  Miss  Delia  Bacon 
and  other  similar  books  followed  thick 
and  fast  after  her  book  blazed  the  path  for  such  ex- 
cursions into  the  realm  of  doubt  and  speculation,  concern- 
ing the  authorship  of  Shakespeare 's  plays. 

The  book  of  Judge  Nathaniel  Holmes,  52  "The  Author- 
ship of  Shakespeare, ' '  also  championing  the  Bacon  theory, 
increased  the  importance  of  the  discussion.  Ignatius  Don- 
nelly published  his  books  presenting  an  alleged  Cypher, 
running  through  the  plays  in  "The  Great  Cryptogram" 
and  the  "  Cypher  in  the  Plays. ' '  The  same  line  of  inquiry 
was  followed  by  Dr.  0.  W.  Owen,  of  Detroit,  Michigan; 
Isaac  Hull  Piatt,  of  New  York,  and  Mr.  R.  M.  Bucke,  of 
London,  Ontario.  And  these  authors,  along  with  the 
works  of  Mrs.  Potts,  "Parallelisms  with  Bacon,"  Judge 
Webb's  "Mystery  of  William  Shakespeare,"  Reed's  "Ba- 
con vs.  Shakespeare,"  Mark  Twain's  "Is  Shakespeare 
Dead,"  Sir  Edward  Lawrence's  "The  Shakespeare 
Myth,"  and  the  publications  of  the  "Bacon  Society,"  may 
be  said  to  fairly  represent  the  Bacon  side  of  the  contro- 
versy. 

Of  the  2000  or  more  books  and  periodicals  printed  in 
the  English  language  concerning  Shakespeare,  prior  to 
the  year  1910,53  it  is  little  wonder  that  different  kinds  of 
freak  ideas  and  wild  theories  have  been  advanced  con- 
cerning both  the  man  and  his  work.     The  growth  of  the 


52 1866,  1886. 

68  Papers  of  the  Shakespeare  Society,  of  New  York;  Digesta 
Shakespeariana  by  Appleton  Morgan;  Thimm's  Shakespearicma, 
from  1564  to  1871. 


BACON-SHAKESPEARE   CONTROVERSY.  XXIX 

literature  upon  the  Bacon-Shakespeare  controversy  illus- 
trates how  a  fad,  when  connected  with  such  a  popular 
subject,  will  grow. 

According  to  Wyman's  "Bibliography  of  the  Bacon- 
Shakespeare  Controversy, ' '  up  to  the  year  1884,  there  had 
been  published  255  books,  pamphlets  and  essays  concern- 
ing the  authorship  of  the  plays.  In  America,  161  volumes 
had  been  published  and  in  England  69.  Of  these  publica- 
tions 73  favored  the  Baconian  theory;  65  left  the  ques- 
tion undetermined  and  23  only  favored  Shakespeare's 
title  to  the  plays.  It  is  probable  that  the  proposition  has 
remained  much  the  same  since  this  date,  yet  all  this  liter- 
ature and  the  efforts  of  Dr.  Orville  Owen,  to  fish  up  some- 
thing tangible  from  the  River  Wye,  has  not  advanced  the 
cause  of  Lord  Bacon  a  jot  or  tittle,  since  Walpole  first 
expressed  his  doubts  about  one  of  his  principal  characters 
and  Delia  Bacon  applied  his  doubts  to  the  great  Master 
himself.  The  River  Wye  is  a  stream  that  modern  hy- 
draulic engineers  cannot  control  even  for  a  few  hours, 
with  all  the  modern  inventions  and  improvements  in  en- 
gineering science  and  that  Lord  Bacon  should  have  exca- 
vated the  bed  of  this  stream  as  a  final  resting  place  for 
his  "  Cypher "  and  that  his  wonderful  engineering  feat 
should  escape  the  notice  of  any  of  his  contemporaries  is 
of  course  ridiculous,  yet  it  is  just  as  reasonable  as  that  he 
wrote  the  plays  of  Shakespeare. 

It  is  not  possible  in  the  space  allowed  to  this  article, 
to  give  anything  like  a  correct  review  of  even  the  most 
exceptional  of  the  various  Bacon  books,  following  the 
work  of  Delia  Bacon,  but  a  terse  analysis  of  a  few  of  them 
may  be  attempted. 

Donnelly's  "Great  Like  Poe's  story,  the  "Gold-Bug," 
Cryptograph  and  these  books  present  a  curious  expla- 
' Cypher.'  "  nation  of  the  process  by  which  the 

author  attempted  to  unravel  a  cypher 
running  through  the  plays  of  Shakespeare,  by  means  of 
words  at  irregular  and  odd  intervals  commencing  with 


THE   LAW    IN    SHAKESPEARE. 

the  initials  of  Lord  Bacon's  name  and  letters  nsed  in 
other  lines  of  other  plays  to  also  spell  his  name,  and  mes- 
sage, when  disconnected  and  used  to  suit  the  author's 
purpose. 

Of  course  cyphers  had  been  in  general  use,  ever  since 
the  days  of  Julius  Caesar  and  were  used  by  him  and  by 
other  distinguished  men,  including  King  James  II  and 
other  prominent  men  of  Bacon's  period.  Bacon  himself, 
as  history  advises  us,  was  also  interested  in  cryptography, 
and  devised  and  explained  cyphers  by  the  use  of  words, 
as  well  as  by  the  use  of  letters  and  alphabets.  One  of  his 
cyphers  was  to  employ  only  the  letters  a  and  b,  arranged 
each  of  them  in  groups  of  five,  so  as  to  represent  all  the 
24  letters  of  the  alphabet.  The  fact  that  he  was  known 
to  be  interested  in  cypher  codes  may  have  given  Mr.  Don- 
nelly the  idea  of  trying  to  decipher  that  he  used  such  a 
means  of  advising  posterity  that  he  had  written  the  plays 
of  Shakespeare,  but  as  no  tangible  evidence  is  produced 
to  sustain  this  theory,  in  this  book,  it  has  not  been  gen- 
erally received.  54  Like  the  same  author's  "Atlantis," 
creative  genius  and  imagination,  akin  to  that  of  Walpole 
and  Miss  Delia  Bacon,  are  the  most  marked  evidences  of 
this  work.55 

The  "Cypher,"  by  the  same  author,  is  based  upon 
many  large  figures,  additions,  subtractions  and  multipli- 
cations, to  get  certain  words,  which  are  then  presented  as 
explaining  the  real  author's  meaning.  For  instance,  in 
the  chapter,  on  "Why  Bacon  denied  the  authorship  of 
the  plays,"56  the  author  finds  the  word  "I"  by  the  fol- 


64  While  not  generally  received,  Donnelly  presented  the  cypher 
in  the  play  so  plainly  that  Dr.  Owen  could  see  it,  as  he  did  the 
lost  records  through  the  mud  and  silt  of  the  tempestuous  river 
Wye  and  the  same  theory  has  been  accepted  and  enlarged  upon 
by  Isaac  Hull  Piatt,  of  New  York,  and  the  late  R.  M.  Bucke,  of 
London,  Ontario,  who,  like  Delia  Bacon,  have  been  no  doubt  given 
the  power  to  see  that  which  does  not  exist  except  in  their  minds. 
85  George  Brandes  terms  this  book  the  "Crazy  Book." 
""The  Cypher  in  Shakespeare's  Plays,"  Chap.  XXVI. 


BACON-SHAKESPEARE   CONTROVERSY.  XXXI 

lowing  method:  "Let  us  take  257  again" — but  why  this 
particular  number  he  does  not  say — "and  instead  of  add- 
ing the  modifier  253  to  it,  deduct  253.  This  leaves  4 ;  add 
532,  the  number  of  words  on  page  74,  and  we  have  536, 
deduct  the  modifier  50,  and  we  have  486;  carry  this 
through  page  73  (406)  words  and  we  have  80  left;  add 
167  and  it  gives  us  247;  add  29  and  we  have  276,  which 
on  the  next  column  is  the  word  "I."57  By  pursuing  this 
process,  over  several  pages,  he  deciphers  the  words  "I 
would  rather  die  a  thousand  deaths  than  bring  such  great 
disgrace,"58  and  from  this,  he  concludes  that  Bacon  thus 
wrote  the  plays  and  by  this  round  about,  haphazard 
method,  gave  his  reason  for  denying  the  authorship. 

Of  course  such  methods  are  not  only  those  of  a  special 
advocate,  but  such  a  Chinese  puzzle  would  more  seriously 
reflect  upon  the  author. 

There  is  no  doubt  but  what  the  pages  when  these  plays 
were  written  were  not  of  even  size  with  those  used  to 
obtain  these  figures  and  even  if  they  were,  since  no  meth- 
od is  used  to  get  the  words,  but  modifiers  and  subtractors 
and  multiples  are  used  at  random  to  pick  out  the  word 
wanted  to  construct  the  given  sentence,  by  a  method 
equally  as  logical  the  author  could  have  figured  out 
words  to  construct  the  sentence  "The  moon  is  made  of 
green  cheese"  and  then  adopted  this  proposition  as  an 
irrefutable  conclusion,  from  the  plays. 

Mark  Twain's  Book,  Mark  Twain  admits  that  he  learned 
"Is  Shakespeare  his    Shakespeare    from    his    River 

Dead?"  Pilot,  Ealer,  who  knew  his  Shakes- 

peare well  and  who  had  no  sym- 
pathy whatever  with  Delia  Bacon's  erratic  and  unphilo- 
sophical  "philosophy."59 

87  Ante  idem.,  p.  194. 

™  Ante  idem.,  p.  197. 

59  "Is  Shakespeare  Dead,"  p.  8.  A  pity  that  this  same  River 
Pilot  could  not  have  piloted  this  distinguished  Missourian  around 
the  shoals  and  quicksands  of  this  Baconian  theory,  in  his  latter 
days. 


XXX11  THE    LAW    IN    SHAKESPEAKE. 

He  says  that  he  is  an  agnostic  upon  the  authorship  of 
the  Shakespearian  plays;  denies  that  Shakespeare  wrote 
the  plays  and  suspects  that  Bacon  may  have  written  them, 
but  does  not  know.60 

Judged  by  this  book,  the  trouble  with  Mark  Twain  is 
that  he  places  the  adherents  of  Shakespeare's  title  in  the 
position  of  '  *  assumptionists, ' '  whereas,  they  only  accept 
the  evidence  at  hand,  without  attempting  to  deny  it,  or 
explain  it  away,  while  he  prefers  to  take  assumptions,  as 
facts  and  to  deny  the  facts,  as  they  really  exist. 

He  "assumes"  that  no  stir  was  made  over  Shakes- 
peare 's  death,  because  his  great  plays  were  not  published 
until  24  years  after  his  death,  but  in  this  he  does  "as- 
sume," for  he  bases  this  statement  upon  no  known  fact. 
He  "assumes"  that  the  townspeople  of  Stratford  did  not 
mourn  him  long  and  if  this  assumption  had  evidence  to 
rest  upon,  it  would  count  for  but  little,  for  the  townspeo- 
ple of  this  country  town,  in  that  day  were  not  an  educated 
class,  and  but  few  of  them  probably  really  knew  of  the 
great  work  their  local  modest  prophet  had  achieved.  He 
concludes,  by  the  expressed  wonder  that  history  had  given 
us  no  evidence  of  the  great  calamity  felt  by  his  contem- 
poraries at  Shakespeare's  death.  If  this  is  any  evidence 
to  question  Shakespeare's  title  to  his  plays,  the  same  ob- 
servation could  be  thrown  out  to  question  the  life  work  of 
every  poet  of  that  and  later  periods. 

Dr.  Johnson,  in  his  life  of  the  great  Dryden,  shows  that 
his  body,  through  a  misunderstanding  of  patrons  who  were 
providing  for  his  burial,  lay  for  a  week  or  so  at  an  under- 
taking establishment  and  it  was  later  buried  through  the 
charity  of  friends.61  If  such  a  state  of  facts  connected 
with  Shakespeare's  death  could  now  be  produced  by  the 
Baconians,  it  would  furnish  something  more  than  mere 
conjecture  that  he  was  not  mourned  by  the  whole  popula- 


60  Ante  idem.,  p.  50. 

"Johnson's  Life  of  Dryden,  (1803),  p.  243. 


BACON-SHAKESPEARE   CONTROVERSY.  XXX111 

tion  of  Stratford  when  he  died,  but  would  it  then  be  any 
evidence  to  rob  him  of  the  title  to  his  plays  ?  It  is  not  con- 
tended that  this  sad  circumstance  in  any  manner  effects 
Dryden's  title  to  his  poems. 

But  is  it  true,  as  Mark  Twain  assumes,  that  Shakespeare 
was  not  mourned  at  his  death ! 

When  he  died,  Milton  was  eight  years  old  and  he  was 
likewise  thirty,  when  his  friend  Ben  Jonson  died  and  he 
must  have  known  them  both  and  no  doubt  enjoyed  a 
personal  contact  with  Jonson,  who  was  Poet  Laureate, 
when  he  died.  At  thirty-seven  Milton  wrote  his  poems, 
L 'Allegro  and  Penseroso,62  in  which  he  spoke  of  both 
Shakespeare  and  Jonson,  in  referring  to  the  pleasures  of 
his  boyhood  days,  at  his  father's  house,  near  Windsor 
Castle : 

"Then  to  the  well-trod  stage  anon, 
If  Jonson's  learned  sock  be  on, 
Or  sweetest  Shakespeare,  fancy's  child, 
Warble  his  native  woodnotes  wild." 

And  in  speaking  of  Shakespeare 's  death,  he  says : 

"What  needs  my  Shakespeare  for  his  honored  bones IV 
If  this  is  not  evidence  that  he  rested  in  an  honored  grave, 
or  that  his  distinguished  countryman  mourned  his  loss, 
then  it  will  be  difficult  to  establish  the  fact  by  an  honored 
or  credible  witness,  to  the  satisfaction  of  the  followers  of 
Delia  Bacon. 

His  death  attracted  such  attention,  even  at  that  period 
of  the  world's  history,  that  the  exact  details  were  noted 
in  the  town  of  his  residence  and  have  been  handed  down 
for  three  centuries.  Doctor  Johnson  says :  ' '  The  character 
and  acquisitions  of  Shakespeare  were  known  to  multi- 
tudes."63 

As  long  ago  as  1769  David  Garrick  organized  a  festival 
at  Stratford,  in  honor  of  Shakespeare  and  it  lasted  for 


"Johnson's  Life  of  Milton,   (1803),  p.  70. 

"Johnson's  works  (1803),  Preface  to  Shakespeare,  Vol.  2,  p.  106. 


XXXIV  THE   LAW    IN    SHAKESPEABE. 

three  whole  days;  was  opened  with  "salvos  of  artillery"; 
was  marked  by  the  erection  of  a  statue ;  the  illumination 
of  the  town,  a  mask  ball,  two  public  breakfasts,  a  dinner 
and  toasts,  and  the  oratio  of  Judith,  in  Trinity  Church 
and  music  of  the  Drury  Lane  Orchestra.  Is  this  no  evi- 
dence that  the  great  Bard  rested  in  an  honored  grave  ? 

Twain  puts  the  question,  "Did  Francis  Bacon  write 
Shakespeare's  works?"  and  then  he  answers,  "Nobody 
knows."64  He  does  not  assume  to  possess  either  the  as- 
surance or  the  familiarity  with  his  subject  that  the  col- 
ored pastor  did,  when  he  established  the  existence  of  Di- 
vinity, by  answering  the  interrogatory  "Is  there  a  God," 
by  the  affirmation, ' '  there  is, ' '  but  thus  denies  any  knowl- 
edge of  the  subject  he  undertakes  to  elaborate,  both  for 
himself  and  for  all  others.  If  "nobody  knows,"  then 
why  should  Twain  afterward  indulge  the  presumption 
that  because  of  Shakespeare 's  unfitness  to  write  the  plays, 
that  Bacon,  or  some  other  person,  equally  capable,  did 
write  them?  By  the  same  argument,  or  lack  of  oppor- 
tunity to  accomplish  this  work,  the  creations  of  the  poets 
of  the  same  and  later  periods  could  be  divested,  for  little 
is  known  of  the  lifework  of  most  of  them,  and  by  much 
stronger  circumstances,  in  later  years,  the  life  work  of 
such  men  as  our  own  great  Lincoln,  can  be  questioned,  for 
he  began  with  much  meaner  beginning  than  did  Shakes- 
peare. 

Twain  forgets  to  judge  of  Shakespeare's  life,  accord- 
ing to  the  history  of  the  time  when  he  lived.  It  is  not 
legitimate  to  compare  the  means  and  facilities  now  exist- 
ing with  those  of  that  period.  The  difference  in  the  con- 
ditions are  too  apparent  to  require  comment,  for  while  true 
that  Twain's  work  has  made  him  known  to  the  people  of 
his  country,  in  the  generation  in  which  he  lived;  it  does 
not  follow  that  he  would  not  have  gone  with  the  unnoticed 


M  "Is  Shakespeare  Dead,"  p.  102. 


BACON-SHAKESPEARE   CONTROVERSY.  XXXV 

millions  who  then  lived  and  worked,  if  he  had  done  the 
same  work  three  centuries  ago. 

After  the  admission  that  "nobody  knows"  whether 
Bacon  wrote  the  plays  or  not  and  the  dearth  of  evidence 
to  divest  the  title  of  Shakespeare,  Twain  may  well  con- 
clude that  there  is  no  danger  "that  Shakespeare  will  have 
to  vacate  his  pedestal  this  side  of  the  year  2209, '  '65  for  not 
only  until  this  year,  but  so  long  as  competent  evidence  is 
required  to  establish  given  facts,  his  title  will  rest  secure 
against  the  attacks  of  those  who  proceed  upon  mere  con- 
jecture and  surmise. 

"For  mine  honour  (which  I  would  free), 
If  I  shall  be  condemned,  upon  surmises, 
All  proofs  sleeping  else,  but  what  your  jealousies  awake, 
I  tell  you,  'tis  rigour  and  not  law."66 

The  Law  in  The  great  quantity  of  law  presented  in  the 
the  Plays.  plays  is  one  of  the  strongest  circumstances 
urged  by  the  Baconians  to  attempt  to  estab- 
lish Bacon's  authorship  of  the  plays.  Lord  Campbell  is 
quoted  to  the  effect  that  "To  Shakespeare's  law,  lavishly 
as  he  propounds  it,  there  can  neither  be  demurrer,  nor  bill 
of  exceptions,  nor  writ  of  error. ' ' 

But  this  statement  is  far  too  general  to  be  accurate,  for 
the  law  is  not  always  correctly  presented  in  the  plays.  A 
notable  instance  is  furnished  by  the  trial  scene,  in  "Mer- 
chant of  Venice"  where  illegal  reasons  are  assigned  for 
the  judgment  against  Shylock  and  his  affirmed  legal 
rights,  said  to  exist  by  reason  of  the  obligations  of  a 
bond — clearly  void,  because  contrary  to  public  policy — 
are  afterwards  struck  down  by  a  shocking  piece  of  pleas- 
antry, based  upon  a  mere  subterfuge-67  No  scientific 
lawyer,  such  as  Bacon,  could  have  written  this  play,  or 


66  "Is  Shakespeare  Dead,"  pp.  129,  130. 

66  Winter's  Tale,  Act  III,  Scene  II. 

67  Von  Ihering's  "Struggle  for  Law,"  p.  80, 


XXXVI  THE   LAW   IN    SHAKESPEARE. 

make  Portia  deliver  such  a  judgment,  for  a  lawyer 
honors  and  extols  the  majesty  of  the  law  as  a  matter  of 
second  nature  and  would  never,  in  the  climax  of  pronounc- 
ing judgment,  thus  strike  down  an  affirmed  right,  by  any 
such  sophistry,  based  upon  such  a  well  known  illegal  po- 
sition. No  object  of  dramatic  climax  could  have  com- 
pelled Lord  Bacon  to  thus  sacrifice  the  law,  in  writing 
this  judgment  scene. 

Judge  Webb,  in  his  "Mystery  of  William  Shakespeare, ' ' 
points  out  many  specific  instances  to  show  that  "Greek 
and  Trojan,  Roman  and  Syracusan,  Ancient  Briton  and 
Scandinavian,  Venetian  and  Illyrian,  Lord  and  Lady,  all 
discuss  the  jargon  of  the  English  Courts."68 

Because  of  this  quantity  of  law  presented  in  the  plays, 
Judge  Webb  is  willing  to  infer  or  surmise  authorship  in 
a  lawyer,  preferring  to  create  poetic  genius  sufficient  to 
write  the  plays,  in  a  lawyer,  not  known  to  possess  such 
genius,  than  to  presume  a  smattering  of  law,  by  a  poet, 
known  to  have  written  plays,  by  the  following  process  of 
reasoning : 

"In  the  one  case  there  is  a  startling  contrast,  between 
the  man,  as  we  know  him,  and  the  works  as  we  possess 
them ;  in  the  other,  the  works  as  we  possess  them,  and  the 
man  as  we  know  him,  are  in  strict  accord.  And  hence,  it  is, 
that  in  the  latter  case,  we  are  ready  to  infer  authorship 
of  the  works,  because  we  recognize  the  qualifications  of 
the  man,  while  in  the  former  we  attribute  the  qualifica- 
tions to  the  man,  because  we  regard  him  as  the  author  of 
the  works.' ' 

That  this  is  a  wild  presumption,  is  most  apparent  when 
it  is  remembered  that  the  plays  abound  in  poetry  and  that 
Shakespeare  was  known  as  a  most  gifted  poet,  and  that 
Bacon  was  a  profound  lawyer,  but  not  a  poet  of  ability 
sufficient  to  have  written  these  plays.  To  attribute  this 
work  of  a  poet  to  a  lawyer,  because  the  work  incidentally 

"Webb's  "Mystery  of  William  Shakespeare,"  pp.  167,  168. 


BACON-SHAKESPEARE    CONTROVERSY.  XXXV11 

contains  law,  rather  than  to  a  poet,  known  to  have  accu- 
mulated a  smattering  of  law,  is  indeed,  a  more  striking 
contrast  than  to  accept  the  traditional  authorship  by  one 
known  to  have  created  similar  work. 

But  for  a  lawyer  to  indulge  in  an  inference,  in  the  face 
of  an  established  fact,  is  a  paradox.  Inferences  are  only 
indulged  in,  in  the  absence  of  the  known  facts,  and  then 
they  always  depend  upon  the  knowledge  of  the  surround- 
ing facts  on  the  part  of  the  person  indulging  such  infer- 
ences. But  if  the  accumulated  evidence  of  Shakespeare's 
contemporaries  is  to  be  brushed  aside  and  inferences  in- 
dulged in,  why  indulge  in  such  an  unreasonable  inference 
as  that  a  philosophical  old  lawyer,  known  to  write  long 
and  ponderous  essays  on  legal  and  philosophical  subjects, 
wrote  poetry  and  comedy  and  tragedy,  because  a  smatter- 
ing of  law  is  set  forth  in  such  works,  when  he  was  not 
known  to  have  performed  such  work  and  there  were  so 
many  others  known  to  perform  similar  work,  living  at  the 
same  time  ?  Many  men  of  letters  of  Shakespeare 's  period 
wrote  plays,  so  why  attribute  plays  to  one  not  known  as  a 
play-writer,  when  there  were  so  many  play-writers,  who 
could  have  written  the  plays.  In  other  words,  the  works 
the  presumption  attaches  to,  are  those  of  a  poet,  there- 
fore a  poet  wrote  the  plays,  not  a  lawyer.  This  would 
surely  be  a  much  saner  presumption,  if  inferences  are  to 
be  indulged  in  at  all,  but  why  speculate  about  the  exist- 
ence of  a  fact  affirmed  by  competent  testimony  ?  Why  not 
accept  the  fact  as  established  by  the  credible  testimony? 
Shakespeare  claimed  the  plays  and  was  the  acknowledged 
author  of  the  plays;  it  is  known  that  he  wrote  plays,  so 
why  deny  his  authorship,  because  of  a  presumption  or 
inference  of  his  incompetency?  Bacon  is  not  known  to 
have  written  plays ;  he  never  claimed  these  plays,  so  if  he 
ever  wrote  plays,  why  presume  that  he  wrote  Shakes- 
peare's plays?    , 

With  notice  of  the  claim,  Bacon  stood  by  and  silently 
saw  another  claim  and  publish  the  plays  and  sonnets, 


XXXV111  THE   LAW   IN    SHAKESPEARE. 

without  urging  his  claim  thereto.  By  an  ancient  principle 
of  equity,  therefore,  he  estopped  both  himself  and  his  ad- 
mirers from  afterward  claiming  these  plays,  when  he  thus 
failed  to  speak  and  assert  his  claim,  when  he  should  have 
spoken  and  upon  sound  principle  the  Baconians  are  pre- 
cluded from  indulging  these  post-century  inferences  con- 
cerning his  title,  because  of  another  rule  of  law  against 
the  assertion  of  such  stale  claims. 

A  Danish  scientist,  has  recently  discovered  that  Shakes- 
peare's types  present  the  best  studies  in  criminology  that 
the  world  has  ever  had,69  but  he  does  not  question  his 
authorship  of  the  plays  for  this  reason,  but  rather  attrib- 
utes this  fact  to  the  genius  of  the  author,  to  his  love  for 
humanity  and  to  the  fact  that  he  analyzed  the  motives  of 
his  fellows  and  put  and  answered  the  same  questions  that 
psychologists  today  are  asking  and  explaining  why  it 
results  that  this  or  that  crime  fits  this  or  that  individual. 

No  amount  of  study  would  give  this  deep  insight  into 
criminology  and  the  inner  recesses  of  the  human  heart  that 
the  criminal  types  in  Shakespeare  present,  but  such  de- 
lineations, so  true  to  life,  like  the  true  and  just  creations 
through  paint  and  marble,  by  Raphael,  Michael  Angelo 
and  the  other  geniuses  that  the  world  has  produced,  have 
rather  this  divine  gift  as  a  basis  for  their  existence- 


69  Goll's  "Criminal  Types  in  Shakespeare,"  pp.  24-30. 

Of  the  great  number  of  books  and  pamphlets  written  on  the 
controverted  title  of  Shakespeare,  none  are  so  convincing  as 
those  written  by  lawyers,  based  upon  the  great  amount  of  accu- 
rate law  that  the  plays  contain,  to  throw  doubts  on  the  authorship 
of  the  plays  by  Shakespeare. 

Principal  among  these  works  are  those  of  Judge  Nathaniel 
Holmes,  Lord  Penzance,  Lord  Campbell  and  Judge  Webb,  of  Dub- 
lin. 

Judge  Webb's  work,  "The  Mystery  of  William  Shakespeare," 
is  the  latest  and  perhaps  the  most  forceful  of  these. 

(See  Holmes'  "Authorship  of  Shakespeare,"  4th  ed.,  Boston, 
1886;  Penzance's  "Shakespeare  Problem,  Re-stated,"  Chap.  XIII.) 


BACON-SHAKESPEARE   CONTROVERSY.  XXXIX 

The  Cases  from  The  case  from  Plowden's  Law  Re- 
Plowden  and  ports,  of  the  death  by  drowning,  of 

Leonard's  Reports.  Sir  James  Hales,  used  as  a  basis  for 
the  argument  by  the  grave-diggers, 
in  Hamlet,  is  referred  to  by  Judge  Holmes  and  other  Ba- 
conians, as  a  most  cogent  reason  why  Shakespeare  could 
not  have  written  the  play,  but  that  it  must  have  been 
written  by  a  lawyer,  since  it  was  not  known  that  Shakes- 
peare had  heard  of  or  read  this  case.  Of  course  this  is  a 
mere  assumption,  for  the  case  may  have  been  read  by 
some  one  of  his  many  acquaintances  at  the  Inns  of  Court 
and  he  could  easily  have  procured  the  book  and  read  the 
case,  if  at  all  interested  in  the  singular  circumstances  con- 
nected with  this  case  of  felo  de  se,  and  later  applied  it  in 
this  death  scene  in  Hamlet. 

From  the  presumption — indulged  in  the  absence  of  any 
knowledge  of  the  facts — it  cannot  be  concluded  that  he 
did  not  read  the  case  and  hence  could  not  have  written  the 
play-  Nor  is  the  other  conclusion  at  all  reasonable,  that 
he  had  to  necessarily  read  this  case,  to  have  composed 
this  scene  at  the  burial  of  Ophelia. 

But  even  if  both  of  these  conditions  were  essential,  it 
is  just  as  improbable  to  conclude  that  because  Bacon  was 
a  lawyer,  he  must  have  read  this  case  and  have  written 
this  scene  of  Hamlet. 

In  Greene  's  Menaphon,  published  in  1589,  it  is  said  that 
Shakespeare  left  the  ''trade  of  Noverint"  to  become  a 
dramatist.  "Noverint"  was  a  well  known  slang  expres- 
sion to  indicate  the  business  of  a  lawyer's  clerk,  or  ap- 
prentice, so  from  this  and  other  evidence,  of  his  experi- 
ence in  a  law  office,  prior  to  that  year,  he  could  well  have 
read  the  case  of  Sir  James  Hales,  which  was  published  in 
1578.  It  no  doubt  attracted  a  great  deal  of  attention,  not 
only  because  of  the  character  and  standing  of  the  suicide, 
but  also  because  of  the  unique  reasoning  whereby  the  for- 
feiture was  enforced  against  his  widow,  so  even  if  Shakes- 


Xl  THE    LAW    IN    SHAKESPEARE. 

peare  had  not  been  for  a  time  in  a  lawyer's  office,  it  is  not 
an  irrefutable  presumption  that  he  nevertheless  read  or 
discussed  this  case,  with  some  of  his  lawyer  friends.70 

An  Irish  King's  Counsel,  has  recently  found  an  old  case 
in  Leonard's  Reports,71  where  Justice  Manwood  refers  to 
a  case  of  robbery,  at  Gad's  Hill  where  one  of  Sir  James 
Hales'  servants  was  robbed  and  the  ''men  of  the  hun- 
dred" of  Gravesend,  in  Kent,  were  sued  under  the  old 
English  statute,  because  of  this  robbery  and  he  says  that 
such  robberies  there  were  so  frequent  that  if  a  recovery 
were  allowed  the  hundred  would  be  bankrupted. 

This  case  was  reported  in  1577  and  First  Part  of  Henry 
IV  was  producd  in  1579,  so,  like  the  case  of  Plowden,  re- 
ferred to  in  Hamlet,  this  is  some  evidence  that  Shakes- 
peare may  have  taken  the  robbery  in  this  play  from  this 
reported  case,  which  some  of  his  studies  may  have  brought 
to  his  attention  or  some  of  his  lawyer  friends,  at  the  Inns 
of  Court,  may  have  discussed  with  him.  But  this  refer- 
ence in  the  play,  to  a  law  report,  is  no  evidence  upon 
which  it  can  be  concluded  that  a  lawyer  wrote  these 
plays,  even  if  it  were  known  that  the  incidents  referred 
to  were  taken  directly  from  these  reports,  for  the  reports 
were  not  inaccessible  to  Shakespeare  and  the  cases  named 
were  no  doubt  much  discussed  at  the  time.  Instead  of 
disproving  his  title  to  these  plays,  these  circumstances 
only  furnish  the  sources  for  his  information,  either  di- 
rectly or  by  hearsay,  for  two  of  the  minor  incidents  in  the 
plays  referred  to. 


70  This  is  the  conclusion,  as  to  this  case  advanced  by  Dr. 
Fiske  in  his  "Forty  Years  of  Bacon-Shakespeare  Folly,"  Atlantic 
Monthly,  for  November,  1897,  pp.  645,  646.  See,  also,  learned  dis- 
cussion by  Fischer,  of  Heidelberg,  in  his  essay,  "Shakespeare 
und  die  Bacon-Mythen,"  read  in  1895,  before  the  Shakespeare 
Society,  at  Weimar. 

n  Leonard,  p.  12. 


BACON-SHAKESPEARE   CONTROVERSY.  xli 

Similar  Law  Shakespeare  had  the  same  means  of  be- 
References  of  coming  familiar  with  the  character  and 
Other  Writers,  work  of  lawyers  and  the  details  of  the 
various  actions  he  refers  to  that  Dickens 
had,  yet  a  recent  writer  has  shown  that  Dickens  has  truly 
portrayed  the  various  types  of  lawyers,  as  one  meets 
them  to  this  day,  in  the  English  Courts :  ' '  The  range  of 
legal  characters  conceived  by  Dickens  was  very  wide.  We 
have  seen  the  trim,  trig,  and  ordinary  in  Mr.  Perker; 
the  contingent  fee  sharpers  in  Dodson  and  Fogg ;  the  bul- 
lying pettifogg  in  Serj.  Buzfuz;  the  commonplace,  hard- 
working, cunning  barrister,  in  Serj.  Snubbin;  the  sloppy, 
down-in-the-heel  bankruptcy  braggart  in  Solomon  Pell; 
the  reprobate  magistrate  in  Fang;  incarnate  villiany  in 
Sampson  Brass;  the  faithless  humble  hypocrite  in  Uriah 
Heap ;  the  weak,  ineffective  and  unfortunate  man  of  prom- 
ise in  Wickfield;  the  ingenious  humbug  in  Spenlow,  and 
his  incompetent  partner,  Jorkins;  the  faithful,  assidious 
old-fashioned  family  solicitor,  in  Mr.  Tulkinghorn ;  the 
self-satisfied  legal  narcissus  in  Kenge;  the  eminently  re- 
spectable expert  chancery  cunctator  in  Vholes;  the  sub- 
lime sacrifice  of  the  brilliant  Jackal  in  Carton;  the  stri- 
dent, successful  and  shouldering  barrister,  in  Stryver; 
the  great  forceful,  bullying  master  of  criminal  law  in 
Jaggers ;  and  the  social  legal  dilletant,  in  Lightwood  and 
Wrayburn.  What  is  there  left?  Notice,  too,  that  each 
is  a  distinct  type,  complete  and  disassociated  in  its  set- 
ting."72 

It  is  well  known  that  Dickens  was  not  a  lawyer.  Shall 
we  conclude  that  some  one  of  the  many  good  lawyers  of 
his  day  wrote  his  various  works,  because  the  life  and 
character  of  various  types  of  lawyers  is  thus  accurately 
portrayed  by  him?  Certainly  not,  yet  it  is  just  as  reas- 
onable as  to  discredit  Shakespeare  's  work,  because  he  also 
portrayed  the  work  of  lawyers,  with  not  a  whit  more  accu- 
racy than  Dickens  and  other  writers  have  done. 

78  George  Packard,  in  45  American  Law  Review,  p.  562. 


Xlii  THE  LAW   IN    SHAKESPEARE. 

If  it  be  suggested  that  these  are  mere  legal  types  and 
not  distinct  cases,  we  have  but  to  refer  to  the  London 
Physician's  details  of  the  common  law  ejectment  suit,  in 
"Ten  Thousand  a  Year,"  George  Eliot's  complex  legal 
plots,  in  "Felix  Holt,"  and  "Daniel  Deronda"  and  Bul- 
wer-Lytton's  details  of  the  law  suit  in  "Night  and  Morn- 
ing, ' '  as  signal  illustrations  of  other  literary  writers  who 
have  resorted  to  law  reports  and  legal  subjects,  as  a  means 
of  presenting  some  phase  of  their  plots  to  the  public. 

Comparison  of  But  it  is  not  only  upon  the  propo- 

Shakespeare's  and  sition  that  the  plays  are  too  great 
Bacon's  Works.  and   out   of   proportion  to   Shakes- 

peare's ability,  that  the  Baconians 
advance  their  argument,  but  the  parallelisms  in  the  plays 
with  Bacon's  works  and  coincidences  of  thought  and  ex- 
pressions are  also  cited  as  evidence  of  the  authorship  by 
Bacon.73 

From  Bacon's  "Promus,"  or  treasury  of  beautiful 
thoughts,  taken  by  him  almost  literally,  in  many  in- 
stances, from  the  Proverbs,  from  Virgil,  Horace,  Ovid, 
Seneca,  the  ancient  philosophers  and  the  most  beautiful 
literary  productions  of  the  different  tongues,  which  hap- 
pened to  strike  his  attention,  there  are  no  doubt  many 
thoughts  and  sentences  which  are  quite  similar  to 
thoughts  and  expressions  in  the  plays  of  Shakespeare,  and 
this  circumstance  is  seized  upon  by  many  of  the  unortho- 
dox school  as  some  evidence  to  show  that  Bacon  wrote 
the  plays.74 

That  there  are  many  resemblances  in  the  forms  and 
manner  of  expression  used  by  these  two  writers  is  very 
evident,  but  this  is  no  doubt  due,  in  large  measure,  to  the 
fact  that  they  both  borrowed  from  the  same  source. 

73  See  "Wit,  Humor  and  Shakespeare,"  by  John  Weiss,  1876. 

"See  Mrs.  Henry  Pott's  600  page  book,  published  in  1883, 
wherein  she  sets  forth  several  hundred  quotations  from  Bacon's 
"Promus,"  which  remind  her  of  similar  passages  in  Shakespeare's 
plays  and  poems. 


BACON-SHAKESPEARE   CONTROVERSY.  xliii 

There  are  also  some  quotations  set  forth  by  Mrs.  Potts 
which  would  go  to  show  that  Bacon  had  purloined  Shakes- 
peare's  thoughts  and  in  some  insances,  Shakespeare  may 
have  used  his  ideas.  • 

The  historian,  John  Fiske,  instances  many  cases  where- 
in Bacon  reproduced  Shakespeare's  thoughts  almost  lit- 
erally, such  as  in  the  "Essay  of  Wisdom,"  published  in 
1612,  wherein  he  quotes  from  Hamlet,  published  in  quar- 
to, in  1603,  and  another  expression  in  the  "Essay  on  Gar- 
dens," first  published  in  1625,  where  the  same  thoughts 
expressed  in  Twelfth  Night,  published  in  book  form  with 
the  edition  of  1623,  are  expressed  by  Bacon.75 

But  though  there  are  instances  that  can  be  cited  to  show 
that  Bacon  expressed  the  same  thoughts  that  Shakespeare 
expressed,  or  vice  versa,  this  argues  nothing,  except,  per- 
haps that  they  both  consulted  the  same  authorities,  or 
used  the  same  books,  or  expressed  the  same  current 
thoughts,  or  each,  in  turn,  may  have  read  the  writings 
of  the  other. 

But  the  known  writings  of  the  two  men  are  essentially 
and  radically  different.  While  Shakespeare  was  engaged 
in  the  composition  of  his  thirty-seven  plays,  two  poems 
and  one  hundred  and  fifty-four  sonnets,  Bacon  was  labor- 
iously constructing  his  new  system  of  philosophy.  He  was 
not  an  idle  man  and  did  not  spend  his  whole  time  on  this 
work,  nor  on  his  other  known  literary  productions,  for  he 
was  during  his  life,  a  distinguished  chancery  lawyer,  with 
a  lucrative  practice;  member  of  Parliament;  Attorney- 
general  of  the  kingdom ;  solicitor-general  and  Lord  Chan- 
cellor. His  work  of  revising  his  new  philosophy  was  far 
from  finished,  at  his  death,  so  even  if  he  had  possessed 
the  poetic  tendency  and  there  had  been  disclosed  any  evi- 
dences to  demonstrate  that  he  was,  in  addition  to  being 
the  able  lawyer  and  philosopher  that  he  was  known  to  be, 


""Forty  Years  of  Bacon-Shakespeare  Folly,"  Atlantic  Monthly, 
for  November,  1897,  p.  648. 


Xliv  THE   LAW    IN    SHAKESPEAKE. 

also  a  born  poet,  such  as  he  would  have  to  be  to  have  writ- 
ten the  plays  of  Shakespeare,  it  is  extremely  doubtful,  if 
he  could  possibly  have  written  these  monumental  works 
and  also  have  accomplished  his  other  known  works,  of 
such  radically  different  kind. 

Shakespeare's  Mistakes  Not  only  in  the  law,  but  in  the 
Not  Those  of  Bacon.  historical  facts,  as  well,  Shakes- 
peare made  mistakes  that  Bacon 
would  never  have  made.  As  observed  by  Dr-  Fiske,  in 
his  " Forty  Years  of  Bacon-Shakespeare  Folly:"70 

"Bacon  would  hardly  have  introduced  clocks  into  the 
Rome  of  Julius  Caesar;  nor  would  he  have  made  Hector 
quote  Aristotle,  nor  Hamlet  study  at  the  University  of 
Wittenberg,  founded  five  hundred  years  after  Hamlet's 
time ;  nor  would  he  have  put  pistols  into  the  age  of  Henry 
IV,  nor  cannon  into  the  age  of  King  John;  and  we  may 
be  pretty  sure  he  would  not  have  made  one  of  his  char- 
acters in  King  Lear  talk  about  Turks  and  Bedlam. ' ' 

These  are  not  the  mistakes  of  such  a  scholar  as  Bacon, 
but  are  the  little  uniformed  facts  peculiar  to  a  broad  but 
not  technical  or  accurate  education,  such  as  Shakespeare 
possessed,  according  to  the  evidence  of  his  friends,  who 
knew  his  limitations,  but  appreciated  his  great  genius. 

Scant  Knowledge  of  Much  stress  has  also  been  laid,  by 
Shakespeare's  Life.  those  who  question  Shakespeare's 
title  to  the  plays,  upon  the  fact 
that  but  little  is  known  of  a  large  portion  of  his  life ;  but 
the  world  knows  about  as  much  of  the  life  of  Shakespeare 
as  it  does  of  the  lives  of  any  of  the  other  dramatists  or 
poets  of  that  same  period.  Alexander  Pope  was  born  in 
London,  over  a  century  after  Shakespeare's  birth,  yet,  in 


Atlantic  Monthly,  for  November,  1897,  p.  647. 


BACON-SHAKESPEARE   CONTROVERSY.  xlv 

his  biography,  Dr.  Samuel  Johnson  said  that  he  came  of 
parents  ' '  whose  rank  or  station  was  never  ascertained. ' m 

Professor  Hales,  is  his  biography  of  Spencer,  said  that 
"the  life  of  Spencer  is  wrapt  in  a  similar  obscurity  to  that 
which  hides  from  us  his  great  predecessor,  Chaucer,  and 
his  great  contemporary,  Shakespeare." 

Of  the  dramatist,  William  Congreve,  who  lived  a  cen- 
tury after  Shakespeare,  Dr.  Johnson,  in  his  biography, 
said:  "Neither  the  time  nor  place  of  his  birth  are  cer- 
tainly known;  if  the  inscription  upon  his  monument  be 
true,  he  was  born  in  1672."  Of  William  Broome,  the  same 
distinguished  authority  said:  "William  Broome  was 
born  in  Cheshire,  as  is  said,  of  very  mean  parents.  Of  the 
place  of  his  birth,  or  the  first  part  of  his  life,  I  have  not 
been  able  to  gain  any  intelligence." 

Practically  the  same  thing  has  been  said  by  competent 
authorities,  of  the  lives  of  Beaumont  and  Fletcher,78  Web- 
ster,79 Marlowe,80  Massinger,81  and  many  other  of  the 
brightest  minds  of  the  same  and  later  periods. 

By  such  argument,  therefore,  most  of  the  literary  ma- 
terial of  the  same  period  can  be  discredited  and  the  writ- 
ings of  the  brightest  poets  and  dramatists  of  the  world's 
history  taken  from  them,  so  no  plausible  theory,  concern- 
ing the  authenticity  of  the  plays  ought  to  be  based  upon 
the  scant  information  concerning  the  man. 

"  The  improbability  of  Shakespeare,  as  a  country  lad,  develop- 
ing, in  a  few  years,  into  the  leading  dramatist  of  the  world,  is  no 
more  improbable  than  that  the  voluptuous  rake  should  soon 
become  the  virtuous  St.  Augustine;  that  the  Corsican  peasant 
should  develop  into  the  Emperor  Napoleon,  or  that  the  rail-split- 
ter of  the  past  century  should  become  the  President  of  the  great- 
est nation  in  the  world.  History  records  these  phenomena  and 
many  similar  ones. 

78  "Mermaid"  Series  of  English  Dramatic  Writers. 

19  Ante  idem. 

80 Ward's  History  of  Dramatic  Literature;  Dyce's  Edition  of 
his  works. 

"Fleay's  Biographical  History  of  the  English  Drama. 


Xlvi  THE    LAW    IN    SHAKESPEAKE. 

Evidence  Establishing  Where  property  rights,  in  law, 
Shakespeare's  Title.        are   subject  to   dispute,   a  title 

may  be  based  alone  upon  the 
possession,  and  enjoyment  of  the  given  disputed  property, 
for  a  series  of  years,  without  more.  If  an  established  rep- 
utation of  ownership  alone  is  sufficient  to  prove  a  right  to 
property,  coupled  with  general  recognition  and  a  contin- 
uous user  and  enjoyment  of  the  property,  it  would  seem 
that  Shakespeare's  title  ought  to  be  secure,  especially  as 
against  Bacon,  and  his  followers,  as  his  title  was  asserted, 
without  dispute,  and  his  plays  were  published  during 
Bacon's  life  time  and  he  never  once  asserted  title  in  him- 
self. A  title  thus  standing  without  dispute,  until  the 
lapse  of  centuries,  ought  to  have  more  than  mere  surmise 
to  overthrow  it,  and  according  to  the  proper  legal  stand- 
ards for  determining  property  rights,  the  adverse  claims 
of  Bacon's  followers  are  effectually  barred  by  limitations, 
laches  and  estoppel. 

But  the  title  of  Shakespeare  does  not  depend  upon  mere 
limitation  and  the  special  defenses  of  laches  and  estoppel. 
He  has  the  best  of  evidence,  to  establish,  by  affirmative 
proof,  his  title  to  the  plays  and  poems- 

The  fact  of  his  birth,  his  attendance  at  the  "free-gram- 
mar school  of  Stratford,"  his  poaching  experience,  his 
marriage,  his  connection  with  the  Globe  theatre,  his  play- 
writing  and  his  relations  with  Ben  Jonson  and  other  dis- 
tinguished men  of  his  period,  are  facts  well  known  to 
every  school  boy,  who  has  read  the  history  of  English 
literature. 

Spencer  is  known  to  have  referred  to  him,  in  his  "Tears 
of  the  Muses,"  published,  in  1591 ;  a  contemporary  and 
brother  Dramatist,  Chettle,  in  1592,  offered  a  printed 
apology  for  an  offense  offered  to  Shakespeare  and  he  ex- 
pressed himself  as  appreciatory  of  his  worth  both  as  a 
man  and  an  author;  Frances  Mere's  in  his  Wits  Treasury, 
published  in  1598,  spoke  of  him  as  the  "most  excellent 


BACON-SHAKESPEARE   CONTROVERSY.  xlvii 

among  the  English  for  both  kinds  of  tragedy  and  com- 
edy." Milton,  a  boy  of  eight,  when  Shakespeare  died, 
"of  the  English  poets,  set  more  value  upon  Spencer, 
Shakespeare  and  Crowley. '  '82  Writing  on  the  blank  leaves 
of  Mr.  Garrick's  book  on  Rymer's  "Remarks  on  the  Trag- 
edies of  the  Last  Age,"  Dryden  said:  "In  the  last  of 
these,  Homer  excels  Virgil ;  Virgil  all  other  ancient  poets ; 
and  Shakespeare  all  modern  poets."83 

John  Hale's  reference  to  Shakespeare  and  Jonson,  in 
1633 ;  Jasper  Mayne's  reference  to  the  dramatist,  in  1637 ; 
Leonard  Digges'  reference  to  the  Poet,  in  the  edition  of 
his  poems,  in  1640;  the  learned  Fuller's  description  of  the 
Poet,  in  his  "Worthies,"  in  1642;  Lady  Margaret  Caven- 
dish's reference  to  him,  in  the  "Prologue"  to  her  plays, 
in  1662;  Dryden 's  reference  to  him  in  his  "Essay  on  Dra- 
matic Poesy,"  in  1668;  Langbaine's  tribute,  in  his  "Ac- 
count of  English  Dramatic  Poets,"  in  1691;  Tate's  "Ad- 
dress," in  1680,  along  with  Richard  Farmer's  "Essay  on 
the  learning  of  Shakespeare,"  in  1766,  and  other  similar 
articles  furnish  abundant  testimony  of  contemporaries 
and  others  of  the  Poet's  ability  and  genius  necessary  to 
produce  the  works  accredited  to  him  and  also  of  his 
actual  production  of  the  works  known  as  his. 

While  true  that  the  first  published  volume  of  the  plays 
occurred  seven  years  after  Shakespeare's  death,  many 
of  the  plays  were  published  and  acted  during  his  life  and 
friends  and  contemporaries  best  knew  of  this  work  and 
never  questioned  his  title  to  the  plays.  Bacon,  Jonson 
and  many  of  the  actors  and  dramatists  who  wrote  when 
he  lived  were  alive  when  the  plays  were  published.  They 
knew  whether  or  not  he  wrote  the  plays  and  if  he  had  not, 
would  not  his  rivals  and  critics  have  raised  the  issue  then  ? 
It  is  hardly  probable  that  the  many  learned  men  of  that 
period  and  of  the  succeeding  generation  were  all  parties 

82  Works  of  Samuel  Johnson,  Vol.  IX,  p.  138. 

83 1  Johnson's  Lives  of  English  Poets  (1803),  p.  198. 


Xlviii  THE   LAW   IN    SHAKESPEARE. 

to  a  gigantic  scheme  to  permit  one  favored  plagarist  to 
perpetrate  such  a  fraud  upon  posterity.  It  is  unreason- 
able in  the  extreme,  for  his  many  rivals  in  the  dramatic 
art  would  never  have  loaned  themselves  to  such  a  scheme, 
even  if  his  immediate  friends  would  have  been  particeps 
criminis  to  such  an  outrage. 

Bacon  was  alive  when  the  first  edition  of  the  plays  were 
published,  by  Heminge  and  Condell,  in  1623,  and  his 
friend  Ben  Jonson  wrote  the  dedication  and  spoke  of  the 
picture  on  the  title  page  as  the  likeness  of ' '  gentle  Shakes- 
peare"; his  works  were  accepted  by  all  classes  as  his  own, 
both  during  his  life  and  after  his  death,  for  a  century  and 
a  half,  without  dispute ;  he  received  special  marks  of  ap- 
proval and  favor  from  Queen  Elizabeth,  and  from  her  suc- 
cessor, King  James,  who  honored  the  poet  with  a  letter 
in  his  own  writing  and  procured  for  him  the  favor  of 
such  men  of  letters  as  the  earls  of  Southampton  and  Pem- 
broke. The  older  editions  of  Shakespeare,  were  published 
in  1632, 1664, 1685 ;  Rowe's  edition  in  1709,  and  successive 
editions  were  edited  by  such  scientific  men  of  letters  as 
Pope,  Theobald,  Sir  Thomas  Hanmer,  the  Oxford  scholar, 
Mr.  Upton,  Dr.  Warburton,  Capell,  Stevens,  Dr.  Samuel 
Johnson,  and  more  recently,  Knight's,  Dyce's,  Collier's, 
Singer's,  Clark's,  and  "Wright's,  Dowden's,  Furnivall's, 
Swinburne's,  "White's,  Hudson's,  Furness'  and  Rolfe's 
editions  have  been  published  and  very  learned  and  scien- 
tific men  in  Germany,  and  other  countries,  have  made  a 
life  study  of  the  works  of  the  immortal  dramatist.  Is 
it  not  strange  that  of  this  large  list  of  scholars  not  one 
has  doubted  the  authorship  of  the  plays  1  In  the  face  of 
the  testimony  of  his  contemporaries  and  the  scientific  and 
expert  testimony  of  these  scholars,  are  the  doubts  based 
upon  such  suggestions  as  Walpole's  and  Delia  Bacon's  or 
the  existence  of  an  imaginary  cypher,  or  of  buried  docu- 
ments in  the  River  Wye,  with  the  other  similar  puzzles 
and  scepticisms,  advanced  on  this  adverse  claim,  to  pre- 
vail?   If  so,  then,  u  'tis  rigour  and  not  law." 


COMMENTARIES  ON  THE  LAW  IN  SHAKESPEARE. 


CHAPTER  I. 

"THE  TEMPEST." 

Sec.  1.     Confiscation  of  property — Doing  homage. 

2.  Witness'  oath. 

3.  The  marriage  contract. 

CHAPTER  II. 


"TWO  GENTLEMEN  OF  VERONA.' 

Sec.  4.     Judgment  unreversed — Tendered. 

5.     Setting  up  new  plea — Repealing  former. 


CHAPTER  III. 

"MERRY  WIVES   OF  WINDSOR." 

Sec.  6.  Contempt  of  Court — Star-Chamber. — 

7.  Compromising  slanders. 

8.  Right  of  Egress  and  Regress. 

9.  Fee-Simple,  Fine  and  Recovery — Waste. 


CHAPTER  IV. 

"TWELFTH  NIGHT." 

Sec.  10.  Exceptions — Improper  conduct. 

11.  Proof — Admission  against  interest. 

12.  Misprison. 

13.  Sheriff's  post. 

14.  Misdemeanors. 

15.  Grand-jury. 

16.  Windy  side  of  the  Law. 

17.  Action  of  battery. 

18.  Party  plaintiff. 


(i) 


THE  LAW  IN  SHAKESPEARE. 


CHAPTER  V. 

"MEASURE  FOR  MEASURE." 

3ec.  19.  Termes  of  the  Law. 

20.  Dead  Laws. 

21.  Custom  shaping  Laws. 

22.  Fraility  of  all  laws — Especially  jury  system. 
,      23.  Action  of  Slander. 

24.  Prostitution  before  the  Law. 

25.  Sentence. 

26.  Plea  for  Pardon. 

27.  Punishment  for  Seduction,  by  Venetian  Law. 

28.  The  severe  Judge. 

29.  Common  Law  marriage  contract. 

30.  Plea  for  Justice. 

31.  The  Equality  of  Justice. 

32.  The  Law  a  gazing-stock,  when  not  enforced. 

33.  Confession  of  guilt. 

34.  Loyalty  of  Attorney. 

35.  Intent,  distinguished  from  Wrongful  Act. 

36.  Breach  of  Promise. 

37.  Punishment  by  marriage  to  prostitute. 


CHAPTER  VI. 

"MUCH  ADO  ABOUT  NOTHING." 

dec.  38.  Endowment. 

39.  Breach  of  the  Peace. 

40.  Punishment  by  Pressing  to  Death. 

41.  "Statutes  of  the  Streets." 

42.  Qualifications  ol  Constable. 

43.  Duties  of  the  Nightwatch. 

44.  False  Imprisonment. 

45.  Preliminary  Hearing. 

46.  Examination  before  Magistrate. 

47.  Householder. 

48.  Preliminary  Examination  for  Burglary, 

49.  Trial    by    Manly    Combat. 

50.  Count— Extra-Judicial   Confession. 

51.  False  Testimony. 

52.  The  Scales  of  Justice. 


THE  LAW  IN  SHAKESPEARE. 

CHAPTER  VII. 

"MIDSUMMER    NIGHT'S    DREAM." 

Sec.  53.  Jurisdiction  of  Athenian  Laws. 

54.  Parent  and  Child,  under  Greek  Law. 

55.  Parent's  right  of  Infanticide,  by  Athenian  Law. 

56.  Pleading  for  Fee. 

57.  Parent's  Consent  to  Child's  Marriage. 

58.  Limitation  of  Municipal  Law. 

CHAPTER  VIII. 

"LOVE'S  LABOUR'S  LOST." 

see.  59.  Term — Subscribing  to  Oath. 

60.  Decrees. 

61.  Penalty  of  the  Law. 

62.  Attainder. 

63.  Taken  "With  the  Manner." 

64.  "In  Manner  and  Form." 

65.  Venue  and  Offense  Charged. 

66.  Inheritance — Dowry. 

67.  Duties  of  Solicitor. 

68.  Surety. 

69.  Title. 

70.  Common — Severalty. 

71.  Crime  of  Perjury. 

72.  Denial  of  Receipt. 

73.  Specialties — Acquittances. 

74.  Apparitors — Duties  of. 

75.  Enfranchising  one. 

76.  Treason. 

77.  "Quillets"  of  the  Law. 

78.  Statute-caps. 

78a.  Slander  dependent  upon  hearer's  attitude. 

CHAPTER  IX. 

"THE    MERCHANT    OF   VENICE." 

Sec.  79.     Warranty. 

80.  Breach  of  Bond — Penalty  for. 

81.  Sealing  written  instrument. 

82.  Extorting  evidence  upon  the  Rack, 
82a.  Tainted  plea. 


1  THE  LAW  IN  SHAKESPEARE. 

83.  Usurer. 

84.  Plea  of  Forfeiture. 

85.  "The  course  of  Law." 

86.  Bond. 

87.  Standing  for  Law. 

88.  Seal. 

89.  Moiety. 

90.  Charter. 

91.  The  Issue  before  the  Court. 

92.  Nature  of  Shylock's  suit. 

93.  Portia's  plea  for  Mercy. 

94.  Antonio's  confession  of  the  bond. 

95.  Plea   for  judgment. 

96.  Justice  of  Shylock's  plea. 

97.  "I  crave  the  Law." 

98.  Tender  in  open  Court. 

99.  Effect  of  legal  precedent. 

100.  Portia's  judgment  on  the  bond. 

101.  Commutation  of  punishment. 

102.  Conveyance  in   use. 

103.  Deed  of  gift. 

CHAPTER  X. 

"AS   YOU   LIKE    IT." 

Sec.  104.  Primogeniture. 

105.  Bequest. 

106.  Heir. 

107.  Testament. 

108.  "Be  It  Known  By  These  Presents." 

109.  Bankrupt. 

110.  Forfeiture  of  land. 

111.  Writ  Extendi  facias. 

112.  Vacations  of  Court. 

113.  Jointure. 

114  Acts  by  Attorneys. 

115.  Examining   Justice. 

CHAPTER  XL 

"ALL'S    WELL    THAT    ENDS    WELL." 

Sec.  116.  Ward's— Heirs  of  fortune  under  King. 

117.  Giving  testimony  against  one — Impeachment. 

118.  Premises. 


THE  LAW  IN  SHAKESPEARE. 

119.  Theft. 

120.  Descent. 

121.  Lawful  Act. 

122.  Unlawful  Intents 

123.  Entailment— Remainders. 

124.  Evidence. 

125.  Divorce. 

CHAPTER  XII. 

"THE   TAMING   OF   THE   SHREW." 

Sec.  126.  Third-borow. 

127.  Court-leet,  or  Manor  Court. 

128.  Adversaries  at  Law. 

129.  Compounding  crime. 

130.  Servant  assaulting  master. 

131.  Punishment  by  the  Pillory. 

132.  Settlement  by  way  of  Assurance. 

133.  Chattels. 

134.  "Packing"  a  witness. 

CHAPTER  XIII. 

"THE  WINTER'S  TALE." 

Sec.  135.  Time  overthrows  Law  and  Custom. 

136.  Trespass. 

>    137.  Negligence  distinguished  from  wilfulness. 

138.  Prisoner's   fees. 

139.  Not  guilty. 

140.  King's  prerogative. 

141.  Child  born  in  prison. 

142.  Commitment  to  jail. 

143.  Arraignment  of  Hermione. 

144.  Surmises,  not  proof  of  guilt. 

145.  Indictment. 

146.  Torture  by  "boiling  in  oil". 

147.  Lawyer's  points. 

148.  Arrested  in  act,  or,  "Taken  with  the  Manner. 

149.  Witchcraft  and  practice  of  magical*  arts. 

CHAPTER  XIV. 

"COMEDY  OF  ERRORS." 

Sec.  150.     Earnest  to  bind  bargain. 
151.    Attachment. 


THE  LAW  IN  SHAKESPEARE. 

152.  Arrest. 

153.  Breach   of  Promise. 

154.  Arrest  upon  mesne  process — Debtor's  dungeon. 

155.  Action  "on  the  case." 

156.  Subornation. 

157.  Prisoner. 


CHAPTER  XV. 


"MACBETH." 

Sec. 

158. 

Estate. 

159. 

Execution. 

160. 

Instigation  of  Macbeth's  crime. 

161. 

Agent. 

162. 

Trust,  from  fiduciary  relation. 

163. 

Murder. 

164. 

Malice. 

165. 

Copyhold. 

166. 

Single  ownership. 

CHAPTER  XVI. 


'KING   JOHN. 


Sec.  167.  Controversy — Judgment  on. 

168.  Descent  to  eldest  son. 

169.  Bastard's  right  to  inheritance. 

170.  Child  begot  when  father  not  infra  quatuor  maria. 

171.  Legitimacy  of  child  born  during  lawful  wedlock. 

172.  Testamentary  disposition,  disinheriting  bastard. 

173.  Landed  'Squire. 

174.  Seduction. 

175.  Arbitration. 

176.  Usurpation — Denial   of  rights. 

177.  Equity. 

178.  Canon  of  the  Law. 

179.  Abstract  and  Brief. 

180.  Indenture. 

181.  Rape. 

182.  Interrogatories. 

183.  Tithes— Toll. 

184.  Laws'  redress  of  wrongs. 

185.  Keeping  the  Peace. 

186.  Source  of  Sovereign  power. 


THE  L^W  IN  SHAKESPEARE. 

CHAPTER  XVII. 

'KING   RICHARD    THE    SECOND.' 


S«c.  187. 

Appellant. 

188. 

Accuser  and  accused. 

189. 

Impeachment. 

190. 

Deposing,  according  to  Law. 

191. 

Trial  by  battle. 

192. 

Party-verdict. 

193. 

Reversion. 

193a 

.  Dying  declarations. 

194. 

Waste  upon  real  estate. 

195. 

Landlord. 

196. 

Lease — Tenement. 

197. 

Possessed. 

198. 

Royalties. 

199. 

Attorneys-General. 

200. 

Letters-patent. 

201. 

Seize. 

202. 

Pine. 

203. 

Repeal. 

204. 

Covenant. 

205. 

Breaking   Laws. 

206. 

Livery. 

207. 

Attorneys. 

208. 

Executors. 

209. 

Failure  to  speak,  in  criminal  case — Standing  mute. 

210. 

Signories. 

211. 

Under  age. 

212. 

Day  of  trial. 

213. 

Answer. 

214. 

Crimes. 

215. 

Manors. 

216. 

Conspiracy. 

CHAPTER  XVIII. 

"FIRST  PART  OF  KING  HENRY  THE  FOURTH." 

Sec.  217.  King's  right  to  prisoners,  under  military  Law. 

218.  "The  Law's  Delay." 

219.  "Peaching"   on   accomplice. 

220.  Righting  Grand-jurors. 

221.  Audi  alteram  partem. 


THE  LAW  IN  SHAKESPEARE. 


222. 

Term  of  apprentice. 

223. 

Arrest  upon  "hue  and  cry." 

224. 

Robbery. 

225. 

Tripartite  agreements. 

226. 

Enfoeffment. 

?-27. 

Alien. 

228. 

Factor — Broker. 

229. 

Maiming. 

230. 

Reprisal. 

231. 

Counterfeit. 

232. 

Death  by  Judicial  Sentence 

CHAPTER  XIX. 

"SECOND  PART  OF  KING  HENRY  THE  FOURTH/' 

233.  Accomplices. 

234.  Assurance — Security. 

235.  Punishment  by  the  stocks. 

236.  Infamy. 

237.  Laws  of  Land-service. 

238.  Action. 

239.  Eating  flesh  contrary  to  law. 

240.  "Faitors." 

241.  Inns  of  Court. 

242.  A  "rotten  case"— No  Counsel  in. 

243.  Riot. 

244.  "A  friend  i'  the  Court." 

245.  Committment  for  Contempt  of  Court. 

246.  Law  no  respector  of  persons. 

247.  Falstaffs  Committment  to  prison. 

CHAPTER  XX. 

"KING  HENRY  THE  FIFTH." 

Sec.  248.  Seditious  and  insurrectionary  bills. 

249.  Bills  against  Ecclesiastics. 

250.  Henry  the  Fifth's  favor  toward  Ecclesiastics. 

251.  Salic  Law  and  Henry  the  Fifth's  Claim  to  France. 

252.  Lex  terra  salica  explained. 

253.  Ancestor. 

254.  Impounding  strays. 

255.  Departments  of  Government  working  harmoniously. 

256.  Adultery. 


THE  LAW  IN  SHAKESPEARE.  9 

257.  Capital  crimes. 

258.  Motive  for  crime. 

259.  Money  paid  in  earnest. 

260.  Divesting  property  rights. 

261.  Respondeat  superior  not  applicable  to  King  and  subject. 

262.  Bearing  testimony. 

263.  Martial  Law. 


CHAPTER  XXI. 

"FIRST  PART  OF  KING  HENRY  THE  SIXTH." 

Sec.  264.  Homicide. 

265.  Distraining  property. 

266.  Proclamation. 

267.  Truant  in  the  Law. 

268.  Brawl. 

269.  Outlaw. 

270.  Contract. 

271.  Partners. 

272.  Fighting  in  King's  palace,  or  presence. 

273.  Quid  pro   quo. 

274.  Condemned  woman's  privilege  of  pregnancy. 

275.  Compromise. 

CHAPTER  XXII. 

"SECOND  PART  OF  KING  HENRY  THE  SIXTH.' 

Sec.  276.  Articles  of  agreement. 

277.  Bargain  and  sale. 

278.  Margery  Jourdemayn's  case. 

279.  Pursuivant. 

280.  Bondman. 

281.  Open  to  the  Law. 

282.  "Rigour  of  the  Law." 

283.  To  apprehend  in  the  fact. 

284.  York's  title  to  the  Crown  of  England. 

285.  Duchess'  of  Gloster's  sentence. 

286.  Justification  for  one  condemned  by  Law. 

287.  Contrary  to  form  of  Law. 

288.  Levying  sums  of  money. 

289.  Taking  bribes. 

290.  Taxes — Restitution. 

291.  Bearing  false  witness — Perjury. 


10  THE  LAW  IN  SHAKESPEARE. 

292.  Executioner. 

293.  Land  held  in  common. 

294.  Sales  of  meat  during  Lent. 

295.  Source  of  Law — Biting  statutes. 

296.  Jurisdiction   regal. 

297.  Benefit  of  Clergy. 

298.  Determining  causes. 

299.  Maiden- rent. 

300.  Bail. 

CHAPTER  XXIII. 

"THIRD   PART   OF  KING   HENRY   THE    SIXTH. 

Sec.  301.  No  inter-regnum,  under  English  Law. 

302.  Title  by  confirmation. 

303.  Disinheriting  heir. 

304.  Estate-tail,  upon  condition. 

305.  Acts  of  Parliament. 

306.  Lady  Grey's  suit  for  husband's  lands. 

307.  Concubine. 

308.  Richard  the  Third,  an  embryonic  criminal. 

309.  Richard's  morbid  vanity. 

310.  Crime  the  basis  of  Richard's  character. 

311.  Elizabeth's  plea  of  "Sanctuary." 

CHAPTER  XXIV. 

"KING    RICHARD    THE    THIRD." 

Sec.  312.  Richard's  crimes  prompted  by  his  isolation. 
312a.  Ordeal  of  the  Bier. 

313.  Law  of  God  and  man. 

314.  Acquittal  of  the  accused. 

315.  Accessory  before  the  fact. 

316.  Avouch. 

317.  Disputing  with  Lunatic. 

318.  Clothing  villany  with  "holy  writ." 

319.  Warrant  no  protection  against  murder. 

320.  Guilty  conscience. 

321.  Reward. 

322.  Death  without  lawful   conviction. 

323.  Divine  Law  against  murder. 

324.  Benefit  of  "Sanctuary." 

325.  Moveables. 

326.  Bigamy. 

327.  Levitical  Law  against  niece  marrying  uncle. 


THE  LAW  IN  SHAKESPEARE.  11 

328.  Richard  the  Third's   inherited  criminal   instinct. 

329.  Demise. 

330.  Corrupted  Justice. 

331.  Swords  as  Laws,  under  Richard's  reign. 

CHAPTER  XXV. 

"KING  HENRY  THE  EIGHTH." 

Sec.  332.  Privity. 

333.  Wasting  manors  in  military  preparations. 

334.  Buckingham's  trial  for  treason. 

335.  "Come  into  Court." 

336.  Pleading  cause. 

337.  Session  of  Court. 

338.  Challenging  prejudiced  Judge. 

339.  Retainers. 

340.  Appearance  in  Court. 

341.  Under  "hand  and  seal." 

342.  Motion  to  dismiss  appeal. 

343.  Dilatory  pleas. 

344.  Adjournment  of  Court. 

345.  Trial  at  Law. 

346.  Inventory. 

347.  Commission  for  office. 

348.  Writ  of  Praemunire. 

349.  Decree  of  divorce  from  Katherine. 

350.  Simony. 

351.  Purging  one's  self  of  guilt. 

352.  Verdict  based  on  perjury. 

353.  Accusing  one,  "face  to  face." 

354.  Accusing  Counsellor. 

355.  Acting  as  both  Judge  and  Juror. 

356.  Crime  of  heresy. 

357.  Appeal  by  King's  ring. 

CHAPTER  XXVI. 

"TROILUS  AND  CRESSIDA." 

Sec.  358.  Ravishment. 

359.  Per  se. 

360.  Justice  residing  between  right  and  wrong. 

361.  Impressment  for  military  service. 

362.  Attestation. 


12  THE  LAW  IN  SHAKESPEARE. 

363.  Damage  and  indemnity  of  war. 

364.  Law's  protection  of  marital  relation. 

365.  A  "privileged  man." 

366.  Underwriting  one. 

367.  A  kiss  in  fee  farm. 

368.  Execution  of  contract  by  parties  "interchangeably." 

369.  Right  warring  with  right. 

370.  Consanguinity. 

371.  Rejoindures. 

372.  Attestation  by  "sight  and  hearing." 

CHAPTER  XXVII. 

"TIMON  OF  ATHENS." 

Sec.  373.  Pawn. 

374.  Death  penalty  for  homicide. 

375.  Joint  and  corporate  action. 

376.  Hereditary  taints. 

377.  Pity  the  virtue  of  Law. 

378.  Plunging  into  Law. 

379.  Defending  manslaughter. 

380.  Killing  in  self-defense. 

381.  Felon  in  irons. 

382.  "Law  is  strict." 

383.  A  cynic's  view  of  Law — Thievery  justified. 

384.  Bawds  not  competent  witnesses. 

385.  Pleading  false  titles. 

386.  The  scope  of  Justice. 

387.  Answering  public  Laws. 

CHAPTER  XXVIII. 

"CORIOLANUS." 

Sec.  388.  Piercing  statutes. 

389.  Manacles. 

390.  Alias. 

391.  Complaint. 

392.  Bencher. 

393.  Pleaders. 

394.  Tarpeian  rock. 

395.  Resisting  Law. 

396.  Process. 

397.  Death  by  the  Wheel. 

398.  Trial  by  Comitia. 


THE  LAW  IN  SHAKESPEARE.  13 

CHAPTER  XXIX. 

"JULIUS  CAESAR." 

Sec.  399.  English  statutes  of  "Laborers  and  Mechanics." 

400.  Idealism  the  basis  of  Brutus'  crime. 

401.  Cassius  the  typical  criminal  revolutionist. 

402.  Cassius'  suggestion  of  the  crime. 

403.  Brutus'  struggle  with  his  conscience. 

404.  The  people's  cause,  the  motive  for  Brutus'  murder. 

405.  "The  Law  of  children." 

406.  "The  King  can  do  no  wrong." 

407.  Caesar's  will. 

408.  The  effect  of  error. 

409.  Antony's  tribute  to  Brutus'  character. 

CHAPTER  XXX. 

"ANTONY  AND  CLEOPATRA." 

Sec.  410.  Bourn. 

411.  Leaving  property  in  use. 

412.  Title  by  descent  and  purchase,  distinguished. 

413.  Prorogue. 

414.  Malefactor. 

415.  Antony's  suicide — Felo  de  se. 

CHAPTER  XXXI. 

"CYMBELINE." 

Sec.  416.  Election  to  act  in  given  way. 

417.  Advocate. 

418.  Condition  of  wager  contract. 

419.  Lawyer's  duty  to  understand  case. 

420.  Witness  to  action. 

421.  Porfeiters. 

422.  Frankleyn. 

423.  Debtor  overpassing  bound. 

424.  Demesne  lands. 

425.  Guiderius'  defense  of  his  crime. 

426.  Upright   Justice. 


14  THE  LAW  IN  SHAKESPEARE. 

CHAPTER  XXXII. 

"TITUS  ANDRONICUS." 

Sec.  427.  Encroachment  upon  Prince's  right. 

428.  Proof  of  facts  apparent. 

429.  Bail  in  Criminal  Case. 

430.  Invoking  Justice  from  heaven. 

431.  The  Goddess  of  Justice  abandoning  the  Earth. 

432.  Libeling  the  Senate. 

433.  Prosecution  for  Contempt. 

434.  Lawful  killing  not  murder. 


CHAPTER  XXXIII. 

"PERICLES,  PRINCE  OP  TYRE. 

Sec.  435.  Incest. 

436.  Development  of  criminal  instinct. 

437.  Bill  of  Lading. 

438.  Poor  man's  right  in  Law. 

439.  A  litigious  peace. 

440.  Serving  clients. 

441.  Applying  judgment  to  the  Judge. 

442.  Modesty  of  Justice. 


CHAPTER  XXXIV. 

"KING  LEAR." 


Sec.  443. 

Divesting  property. 

444. 

Entailment  of  estate. 

445. 

Reservation,  in  grant. 

446. 

Parricide. 

447. 

Identifying  criminals  by  pictures. 

448. 

An  "action-taking"  knave. 

449. 

Crimes  unwhipped  by  Justice. 

450. 

Summoners. 

451. 

"Whipped  from  tithing  to  tithing.' 

452. 

Imaginary  trial  of  Goneril. 

453. 

Equal  rank  in  Trial   by  Battle. 

THE  LAW  IN  SHAKESPEARE.  15 

CHAPTER  XXXV. 

"ROMEO  AND  JULIET." 

Sec.  454.  Bond  to  Keep  the  Peace. 

455.  Wife's  legal  status. 

456.  Sale  of  Life  Tenure. 

457.  Amercement  by  fine. 

458.  Murder   to   kill   murderer   illegally. 

459.  Tybalt's  death  murder  at  Romeo's  hands. 
;     460.  No  slander  to  speak  the  truth. 

461.  Label  appended  to  deed. 

462.  Sale  of  poison  contrary  to  Italian  Law. 

463.  Purging  impeachment. 


CHAPTER  XXXVI. 

"HAMLET,   PRINCE  OF  DENMARK." 

Sec.  464.  Law  and  Heraldry. 

465.  Trespass  vi  et  armis. 

466.  Forgeries. 

467.  Appurtenances. 

468.  Detecting  crime. 

469.  Quietus. 

470.  Fratricide. 

471.  No  corrupted  Justice  above — Evidence  by   interested 

party. 

472.  Counselor. 

473.  Pleas  in  Abatement. 

474.  "Crowners-quest  Law." 

475.  Hamlet's  legal  comments  on  the  skull. 

476.  Hamlet's  survivorship  and  disposal  of  the  Crown. 


CHAPTER  XXXVII. 

"OTHELLO,  THE  MOOR  OF  VENICE." 

Sec.  477.  Non-suit. 

478.  Duke's  promise  to  redress  Brabantio's  wrong. 

479.  Proof  required  of  Desdemona's  seduction. 

480.  Othello's  election  to  stand  upon  Desdemona's  evidence. 

481.  Sequestration  against  Desdemona. 


16  THE  LAW  IN  SHAKESPEARE. 

482.  Iago  the  cynic  anti-pathetic  criminal. 

483.  Law  days  of  Courts  of  Inquiry. 

484.  Iago's  crime  against  Othello. 

485.  Proof  of  guilt  "beyond  reasonable  doubt." 

486.  False  indictment  on  suborned  testimony. 

CHAPTER  XXXVIII. 

"VENUS  AND  ADONIS." 

Sec.  487.  Judge  cannot  right  his  own  cause. 

488.  Law-giver  unable  to  enforce  Law. 

489.  Client  wrecked,  when  attorney  mute. 

490.  Conveyance  by  seal-manual. 

491.  Double  penalty  upon  broken  bond. 

492.  Inheritance  by  next  of  blood. 

CHAPTER  XXXIX. 

"THE  RAPE  OF  LUCRECE." 

Sec.  493.  Loving  against  Law  and  Duty. 

494.  Pleading  for  right,  in  wilderness  without  Law. 

495.  Holy  human  Law. 

496.  Attestation  by  Notary. 

497.  The  assault  upon  Lucrece. 

498.  Opportunity  spurns  Right  and  Law. 

499.  Justice  feasting,  while  widow  weeps. 

500.  Errors  by  opinion  bred. 

501.  Wronger  wronged  by  Time. 

502.  Case  past  help  of  Law. 

503.  Rightful  plea  for  Justice— Denial  of. 

CHAPTER  XL. 
"SONNETS." 

Sec.  504.  Determination  of  lease. 

505.  Improper  to  praise  by  hearsay. 

506.  Adverse  party  for  advocate. 

507.  Trial  between  Eye  and  Heart— Jury  of  Heart's  tenants. 

508.  No  cause  alleged  against  lawful  reason. 

509.  Grant  failing  for  want  of  consideration. 

510.  Forfeiture  of  limited  lease. 

511.  Forfeiting  mortgaged  property. 


CHAPTER  I. 

"THE  TEMPEST." 
Sec.  1.  Confiscation  of  property — Doing  homage. 

2.  Witness'  oath. 

3.  The  marriage  contract. 

Sec.  1.  Confiscation  of  Property — Doing  Homage. 

"Pro.  This  King  of  Naples,  being  an  enemy  to  me  invet- 
erate, hearkens  my  brother's  suit ; 

Which  was  that  he,  in  lieu  o'  the  premises,  of  hom- 
age and  I  know  not  how  much  tribute, — 

Should  presently  extirpate  me  and  mine  out  of  the 
dukedom ;  and  confer  fair  Milan,  with  all  the  hon- 
ors, on  my  brother."1 

This  language  is  used  to  show  a  consideration  for  the 
confiscation  of  the  estate  of  the  speaker. 

"In  lieu  o'  the  premises,"  are  terms  indicative  of  the 
common  meaning  of  a  quid  pro  quo.  "Lieu"  is  here  used 
in  the  sense  of  instead  or  in  place  of.  That  is,  the  scheme 
of  confiscation  had  been  adopted  in  lieu  of  the  plan  of 
extortion  and  extortion  was  the  consideration  for  the  judg- 
ment of  confiscation. 

Homage,  in  feudal  law,  was  the  rendition  of  submission 
and  service  by  the  tenant  to  the  lord  or  superior,  when 
first  admitted  to  the  land  which  he  held  of  him,  in  fee. 
In  other  words,  when  invested  with  the  fee,  the  tenant 
rendered  homage  to  the  Lord.  The  tenant  was  ungirth 
and  uncovered  and  he  kneeled  and  held  up  both  hands 
between  those  of  the  lord,  and  professed  that  "he  did 
become  his  man,  from  that  day  forth,  of  life  and  limb  and 
earthly  honor."  After  this  profession  he  received  a  kiss 
from  the  lord  paramount  and  the  ceremony  of  doing 
homage  was  then  ended.2 

1  Tempest,  Act  I,  Scene  II. 

2  Blackstone's  Com.  87;  Tiedeman's  Real  Prop.  (3d  Ed.)  Ch.  III. 
The  word  "lieu"  is  also  used,  in  Love's  Labour's  Lost  (Act  III, 
Scene  I)  in  the  following  sense:  ''Arm.  I  give  thee  thy  liberty,  set 

(17) 


18  THE  LAW  IN  SHAKESPEARE. 

thee  from  durance,  and,  in  lieu  thereof,  impose  on  thee  nothing 
but  this." 

In  Merchant  of  Venice  (Act  IV,  Scene  I)  after  acknowledg- 
ment of  his  obligations  to  Portia,  for  the  acquittance  from  the 
Jew,  Bassanio  "in  lieu"  thereof  tendered  the  three  thousand  du- 
cats to  Portia. 

In  Comedy  of  Errors,  the  Merchant  advises  Antipholus:  "There- 
fore, give  out  you  are  of  Epidamnum,  Lest  that  your  goods  too 
soon  be  confiscate."     (Act  I,  Scene  II.) 

In  rendering  homage  to  King  Henry  VI,  Richard  Plantagenet 
said:  "Plan.  Thy  humble  servant  vows  obedience  and  humble 
service,  till  the  point  of  death."  And  the  King  said:  "K.  Hen. 
Stoop  then,  and  set  your  knee  against  my  foot;  And  in  reguerdan 
of  that  duty  done,  I  gird  thee  with  the  valiant  sword  of  York: 
Rise,  Richard,  like  a  true  Plantagenet;  And  rise  created  princely 
duke  of  York."     (Act  III,  Scene  I.) 

Charles,  Dauphin  of  France,  and  his  nobles,  swear  allegiance  to 
the  crown  of  England,  in  1'  Henry  VI,  as  follows: 
"York.   Then  swear  allegiance  to  his  majesty; 
As  thou  art  knight,  never  to  disobey, 
Nor  be  rebellious  to  the  crown  of  England, 
Thou  nor  thy  nobles,  to  the  crown  of  England."      (Act  V, 
Scene  IV.) 

King  Henry  VI,  in  2'  Henry  VI,  knights  Alexander  Iden,  for 
killing  Cade,  in  this  language:  "K.  Hen.  .  .Iden,  kneel  down. 
(He  kneels.)  Rise  up  a  knight.  We  give  thee  for  reward  a 
thousand  marks;  And  will,  that  thou  henceforth  attend  on  us." 
(Act  V,  Scene  I.) 

The  king  thus  knights  his  son,  in  3' Henry  VI:  "Q.  Mar.  .  .  . 
You  promised  knighthood  to  our  forward  son;  Unsheathe  your 
sword,  and  dub  him,  presently. — Edward,  kneel  down. 

K.  Hen.  Edward  Plantagenet,  arise  a  knight;  And  learn  this 
lesson,  draw  thy  sword  in  right. 

Prince.  My  gracious  father,  'by  your  kingly  leave,  I'll  draw 
it  as  apparent  to  the  crown,  And  in  that  quarrel  use  it  to  the 
death."     (Act  II,  Scene  II.) 

Warwick  tells  Clarence,  in  3'  Henry  VI:  "War.  .  .  now  then 
it  is  more  than  needful,  Forthwith  that  Edward  be  pronounced 
a  traitor,  And  all  his  lands  and  goods  be  confiscate."  (Act  IV, 
Scene  VI.) 

Belarius  tells  Cymbeline: 

"First  pay  me  for  the  nursing  of  thy  sons;  And  let  it  be  con- 
fiscate all,  so  soon  as  I  have  received  it."  (Act  V,  Scene  V.) 


THE  TEMPEST.  19 

Sec.  2.    Witness  oath. — 

"Cal.    I'll  swear  upon  that  bottle  to  be  thy  true  subject. 

for  the  liquor  is  not  earthly. 
Ste.    Here ;  swear  then,  how  thou  escap'dst. 
Trin.    Swam  a-shore,  man,  like  a  duck;  I  can  swim  like 

a  duck,  I'll  be  sworn.    .     .     . 
Ste.    Come,  swear  to  that ;  kiss  the  book ;  I  will  furnish  it 

anon,  with  new  contents:  swear."1 

The  most  common  form  of  oath,  by  the  use  of  the  gospel, 
is  that  here  adopted.  This  form  of  oath  obtains  in  coun- 
tries subject  to  the  English  and  Roman  law.  The  witness 
took  the  book  in  his  hand  and  then  assented  to  the  words : 
"You  do  swear  that,"  etc.,  "so  help  you,  God,"  and  then 
kissed  the  book.2  The  origin  of  this  form  of  oath  may  be 
traced  to  the  Roman  law.3  Kissing  the  book  is  perhaps  an 
imitation  of  the  priest's  kissing  the  ritual,  as  a  sign  of 
reverence  before  reading  it  to  the  congregation.4 

That  the  central  idea  of  the  oath  was  thoroughly  under- 
stood by  the  Poet  is  apparent  from  the  language  used,  for 
an  oath  is  but  an  outward  pledge  that  the  witness  makes 
his  attestation  under  an  immediate  sense  of  his  responsi- 
bility to  God  and  promises  to  accomplish  the  transaction 
to  which  it  refers,  according  to  His  laws.5 

1  Tempest,  Act  II,  Scene  II. 

2  9  Carr  &  P.,  137. 

3  Nov.  8,  Tit.  3;  Nov.  124,  cap.  1. 
4Rees,  Cycl. 

8  Tyler,  Oaths,  15. 

The  Jew  is  sworn  on  the  Pentateuch,  or  Old  Testament,  with 
his  head  covered.  Strange,  821,  1113.  The  Mohammedan,  on  the 
Koran,  1  Leach,  Cr.  Cas.  54.  The  Brahmin,  by  touching  the  hand 
of  a  priest,  Wils.  549. 

In  Love's  Labour's  Lost,  the  Poet  justifies  a  false  oath,  as 
follows: 
"Biron.    Let  us  once  lose  our  oaths,  to  find  ourselves, 

Or  else  we  lose  ourselves  to  keep  our  oaths; 

It  is  religion  to  be  thus  forsworn; 

For  charity  itself  fulfills  the  law; 

A.nd  who  can  sever  love  from  charity."     (Act  IV,  Scene  III.) 


20  THE  LAW  IN  SHAKESPEARE. 

In  Merchant  of  Venice  (Act  II,  Scene  II),  the  oath,  by  swear- 
ing on  the  book,  is -again  spoken  of,  as  follows:  "Laun.  Father, 
in: — I  cannot  get  a  service,  no: — I  have  ne'er  a  tongue  in  my 
head. — Well;  (looking  on  his  palm)  if  any  man  in  Italy  have  a 
fairer  table,  which  doth  offer  to  swear  upon  a  book. — I  shall  have 
good  fortune,"  etc.  And  Shylock  said:  "An  oath,  an  oath,  I  have 
an  oath  in  heaven:  Shall  I  lay  perjury  upon  my  soul?  No,  not 
for  Venice."     (Act  IV,  Scene  I.) 

In  All's  Well  That  Ends  Well,  (Act  IV,  Scene  II)  the  Poet 
makes  Diana  say :  "Dia.    'Tis  not  the  many  oaths  that  makes  the 

truth; 
But  the  plain  single  oath,  that  is  vow'd  true. 
What  is  not  holy,  that  we  swear  not  by;  but  take  the  highest 

to  witness." 

In  Winter's  Tale,  the  messengers  from  Apollo's  priest,  took  the 

following  oath: 

"Offi.    You  here  shall  swear  upon  this  sword  of  justice, 

That  you,  Cleomenes  and  Dion,  have  been  both  at  Delphos; 
And  from  thence  have  brought  this  seal'd-up  oracle, 
By  the  hand  deliver'd  of  great  Apollo's  priest;  and  that, 
Since  then,  you  have  not  dar'd  to  break  the  holy  seal, 
Nor  read  the  secrets  in't. 

Cleo.    Dion.    All  this  we  swear."     (Act  III,  Scene  II.) 

On  pronouncing  their  banishment,  King  Richard  II  exacts  the 
following  oath  from  Bolingbroke  and  Norfolk: 
"K.  Rich.    Return  again,  and  take  an  oath  with  thee. 

Lay  on  our  royal  sword  your  banish'd  hands; 

Swear  by  the  duty  that  you  owe  to  heaven, 

(Our  part  herein  we  banish,  with  ourselves,) 

To  keep  the  oath  that  we  administer:  — 

You  never  shall  (so  help  you  truth  and  heaven:) 

Embrace  each  other's  love  in  banishment; 

Nor  never  look  upon  each  other's  face; 

Nor  never  write,  regreet,  nor  reconcile 

This  lowering  tempest  of  your  home-bred  hate; 

Nor  never  by  advised  purpose  meet, 

To  plot,  contrive,  or  complot  any  ill. 

'Gainst  us,  our  state,  our  subjects  or  our  land. 
Boling.    I  swear. 
Nor.    And  I,  to  keep  all  this."     (Act  I,  Scene  III). 

In  V  Henry  IV,  Francis  said  to  Prince  Henry:   "Fran.    0  lord, 


THE  TEMPEST.  21 

sir;  I'll  be  sworn  upon  all  the  books  in  England,  I  could  find  in 
my  heart."     (Act  II,  Scene  IV.) 

The  Poet  makes  Palstaff  say  to  Bardolph,  in  1'  Henry  IV: 
"Fal.  ...  If  thou  wert  any  way  given  to  virtue,  I  would 
swear  by  thy  face;  my  oath  should  be,  By  this  fire."  (Act  III, 
Scene  III.) 

Hostess  Quickly,  in  2'  Henry  IV  (Act  II,  Scene  II),  puts  Fal- 
staff  upon  his  oath,  as  follows:  "Host.  Thou  did'st  swear  to  me 
upon  a  parcel-gilt  goblet,  sitting  in  my  Dolphin  chamber,  at  the 
round  table,  by  a  sea-coal  fire,  upon  Wednesday,  in  Whitsun  week, 
when  the  Prince  broke  thy  head  for  liking  his  father  to  a  signing 
man  of  Windsor,  thou  did'st  swear,  to  me  then,  as  I  was  washing 
thy  wound,  to  marry  me  and  make  me  my  lady  thy  wife.  Can'st 
thou  deny  it?  .  .  .  And  did'st  thou  not  kiss  me  and  bid  me 
fetch  thee  thirty  shillings?  I  put  thee  now  to  thy  book-oath; 
deny   it,  if  thou  can'st." 

Pistol,  enraged  at  corporal  Nym,  comes  quite  near  taking  an 
oath,  in  Henry.  V,  as  follows:  "Pist.  Base  tike,  call'st  thou  me — 
host?  Now,  by  this  hand  I  swear,  I  scorn  the  term;  nor  shall  my 
Nell  keep  lodgers.     (Act  II,  Scene  I.) 

And  in  attempting  to  part  the  combatants,  Bardolph  said: 
"Bard.  By  this  sword,  he  that  makes  tfre  first  thrust,  I'll  kill 
him;  by  this  sword,  I  will."  And  Pistol  replies:  "Pist.  Sword 
is  an  oath,  and  oaths  must  have  their  course."     (Act  II,  Scene  I.) 

In  2'  Henry  VI,  the  earl  of  Salisbury,  thus  abjures  his  oath 
of  allegiance  to  the  King: 

"Hen.    Hast  thou  not  sworn  allegiance  unto  me? 
Sal.    I  have. 

Hen.    Can'st  thou  dispense  with  heaven  for  such  an  oath? 
Sal.    It  is  great  sin,  to  swear  unto  a  sin; 

But  greater  sin,  to  keep  a  sinful  oath. 

Who  can  be  bound  by  any  solemn  vow 

To  do  a  murderous  deed,  to  rob  a  man. 

To  force  a  spotless  virgin's  chastity, 

To  reave  the  orphan  of  his  patrimony, 

To  wring  the  widow  from  her  custom'd  right; 

And  have  no  other  reason  for  this  wrong, 

But  that  he  was  bound  by  a  solemn  oath?" 

(Act  V,  Scene  I.) 

Richard  thus  reasons  that  a  non-official  oath  is  without  effect 
in  3'  Henry  VI: 

"Rich.    An  oath  is  of  no  moment  being  not  took, 
Before  a  true  and  lawful  magistrate, 


22  THE  LAW  IN  SHAKESPEARE. 

That  hath  authority  over  him  that  swears; 
Henry  had  none,  but  did  usurp  the  place; 
Then  seeing  'twas  he  that  made  you  to  depose, 
Your  oath,  my  lord,  is  vain  and  frivolous." 

(Act  I,  Scene  II.) 

Clarence  thus  excuses  his  violation  of  his  oath  in  3'  Henry  VI: 
"Clar.    Perhaps,  thou  wilt  object  my  holy  oath, 
To  keep  that  oath  were  more  impiety, 

Than  Jeptha's,  when  he  sacrificed  his  daughter."      (Act  V, 
Scene  I.) 

In  his  attempt  to  woo  the  daughter  of  Queen  Elizabeth,  his 
own  niece,  King  Richard  III  swears  as  follows: 
"K.    Rich.    .     .     .    Now,    by    my    George,    my    garter    and    my 

crown, — 
Q.  Eliz.     Profan'd,  dishonored  and  the  third  usurp'd. 
K.  Rich.    I  swear. 
Q.  Eliz.    By  nothing;  for  this  is  no  oath. 

Thy  George,  profan'd,  hath  lost  its  holy  honour; 

Thy  garter,  blemish'd,  pawn'd  his  knightly  virtue; 

Thy  crown  usurp'd,  disgrac'd  his  kingly  glory; 

If  something  thou  would'st  swear  to  be  believ'd, 

Swear  then  by  something  that  thou  hast  not  wrong'd." 

(Act  IV,  Scene  IV.) 

Lucius  thus  swears  to  perform  his  promise  to  Aaron,  in  Titus 
Andronicus: 
"Luc.    Even  by  my  God,  I  swear  to  thee,  I  will." 

(Act  V,  Scene  I.) 

And  Hamlet  and  the  Ghost  insist  upon  Horatio  and  Marcellus 
being  sworn,  as  follows: 
"Ham.     .    .    .      consent  to  swear. 
Hor.    Propose  the  oath,  my  lord. 
Ham.    Never  to  speak  of  this  that  you  have  seen. 

Swear  by  my  sword. 
Ghost.     (Beneath)     Swear. 
Ham.     Hie  et  ubique?  then  we'll  shift  our  ground:  — 

Come  hither,  gentlemen, 

And  lay  your  hands  upon  my  sword: 

Swear  by  my  sword. 

Never  to  speak  of  this  that  you  have  heard. 
Ghost.     (Beneath.)     Swear  by  his  sword."     (Act  I,  Scene  V.) 


THE  TEMPEST.  23 

Sec.  3.    The  marriage  contract — 

"Pro.  If  thou  dost  break  her  virgin  knot  before  all  sanc- 
timonious ceremonies  may,  with  full  and  holy  rite 
be  ministered, 

No  sweet  aspersion  shall  the  heavens  let  fall  to 
make  this  contract  grow."1 

To  guarantee  deliberation  and  preserve  the  positive  evi- 
dence of  such  an  important  transaction,  the  laws  of  most 
civilized  countries  require  certain  forms  in  the  celebration 
of  the  marriage  ceremony.2  In  one  form  or  another  mar- 
riage is  the  oldest  institution  of  society  and  the  source  of 
its  most  antique  laws.  At  the  basis  of  the  marriage  cele- 
bration is  the  necessity  of  society  for  some  rule  for  the 
appropriation  of  the  opposite  sexes  to  one  another  and  the 
protection  of  the  relation  established.3  The  higher  the 
standards  of  civilization,  no  doubt  the  greater  regard  is 
paid  to  the  established  ceremonies  through  which  the 
marriage  is  celebrated.  Hence  the  suggestion,  by  the  poet 
that  "No  sweet  aspersion  shall  the  heavens  let  fall,  to  make 
this  contract  grow,"  until  "all  sanctimonious  ceremonies 
may,  with  full  and  holy  rite,  be  ministered."  In  all 
Christian  countries,  the  marriage  contract  is  celebrated 
by  the  accompaniment  of  a  religious  ceremony.4  Hilde- 
brand  declared  marriage  to  be  a  sacrament  of  the  church ; 
Calvin  declared  it  to  be  an  institution  of  God,  while  Gro- 
tius  denned  it  as  a  contract  of  partnership.  The  legal  idea 
of  the  marriage  ceremony  is  presented  in  the  above  verse, 
as  well  as  the  recognition  of  the  institution  from  a  spirit- 
ual standpoint,  for  in  legal  contemplation,  even  where  the 
intervention  of  the  priest  is  essential,  on  grounds  of  public 
policy,  marriage  is  nothing  more  nor  less  than  a  civil 
contract,  differing  from  other  contracts  in  that  its  inci- 
dents are  fixed  by  public  law  and  in  so  far  as  it  affects  the 
status  of  the  contracting  parties.6 

tempest,  Act  IV,  Scene  I. 

2  McLennan,   Prim.   Mar. 

3  Lubbock's  Origin  of  Civilization;  Tylor  Early  History  of  Mankind. 

4  Bishop's  Marriage  and   Divorce. 

5  Bishop's  Marriage  and  Divorce. 


24  THE  LAW  IN  SHAKESPEARE. 

For  the  effect  of  marriage  contracts  and  espousals,  both  in  the 
civil  courts  and  ecclesiastic  courts  of  Europe,  see,  6'  Bacon's  Abr., 
pp.  454,  500. 

There  is  perhaps  no  legal  subject  to  which  Shakespeare  makes 
more  frequent  reference  than  he  does  to  that  of  marriages.  Mar- 
riage ceremonies  are  presented  in  many  of  the  different  plays. 

That  the  recognition  of  the  marriage  contract  as  both  a  spir- 
itual institution  and  a  legal  contract,  was  appreciated  by  the 
Poet,  will  be  apparent  from  a  reading  of  his  plays,  where  this 
theme  is  touched  on.  Thus,  he  makes  Olivia  say  to  Sebastian: 
"Oli.  Now  go  with  me  and  with  this  holy  man,  Into  the  chantry 
by:  there,  before  him,  And  underneath  that  consecrated  roof, 
Plight  me  the  full  assurance  of  your  faith."  (Twelfth  Night,  Act 
IV,  Scene  III.) 

And  again,  the  Priest  details  this  ceremony:  ''Priest.  A  con- 
tract of  eternal  bond  of  love,  confirmed  by  mutual  joinder  of 
your  hands,  Attested  by  the  holy  close  of  lips,  Strengthened  by 
interchangement  of  your  rings;  And  all  the  ceremony  of  this 
compact,  Sealed  in  my  function,  by  my  testimony."  (Twelfth 
Night,  Act  V,  Scene  I.) 

In  As  You  Like  It  (Act  III,  Scene  III),  The  Vicar,  Sir  Oliver 
Martext,  observed: 
"Truly,    she   must   be    given,    or    the    marriage    is   not    lawful." 

And  in  the  marriage  contract  between  Blanch  and  Lewis, 
Dauphin  of  France,  the  following  occurs:  "K.  John.  .  . 
Phillip  of  France,  if  thou  be  pleased  withal,  Command  thy  son 
and  daughter  to  join  hands.  K.  Phi.  It  likes  us  well: — Young 
princes,  close  your  hands."     (King  John,  Act  II,  Scene  I.) 

And  the  following,  from  As  You  Like  It: 
"Ros.    Come,   sister,   you   shall   be  the   priest   and   marry   us. — 

Give  me  your  hand,  Orlando: — What  do  you  say,  sister? 
Orl.     Pray  thee,  marry  us. 
Cel.     I  cannot  say  the  words. 
Ros.    You  must  begin, — Will  you,  Orlando. — 
Cel.    Go  to:— Will  you,  Orlando,  have  to  wife,  this  Rosalind? 
Orl.    I  will. 
Ros.     Ay,  but  when? 

Orl.    Why  now,  as  fast  as  she  can  marry  us. 
Ros.    Then  you  must  say, — 7  take  thee  Rosalind,  for  wife. 
Orl.     I  take  thee,  Rosalind,  for  wife. 

Ros.     I   might   ask   you   for   your   commission:    but — I   do   take 
thee,  Orlando,  for  my  husband."     (Act  IV,  Scene  I.) 


THE  TEMPEST.  25 

And  in  the  song,  by  the  representative  of  Hymen,  in  the  same 
play,  the  sentiment  is  expressed  as  follows:  "Wedding  is  great 
Juno's  crown;  O  blessed  bond,  of  board  and  bed."  (Act  V,  Scene 
IV.)  This  is  based  on  the  legal  expression,  used  in  divorces  from 
the  bed  and  board,  i.  e.,  mensa  et  thora,  to  distinguish  divorces 
from  the  bonds  of  matrimony,  or  those  a  vinculo  matrimona. 

In  All's  Well  That  Ends  Well,  the  following  occurs:  "King. 
Good  fortune  and  the  favor  of  the  king  smile  upon  this  contract; 
whose  ceremony  shall  seem  expedient  on  the  now-born  brief  and 
be  performed  to-night."     (Act  II,  Scene  III.) 

Queen  Isabel,  of  France,  congratulated  and  blessed  the  union 
of  Henry  V  and  Katharina,  as  follows: 
liQ.  Isa.     God,  the  best  maker  of  all  marriages, 

Combine  your  hearts  in  one,  your  realms  in  one. 
As  man  and  wife,  being  two,  are  one  in  love, 
So  be  there  'twixt  your  kingdoms  such  a  spousal, 
That  never  may  ill  office,  or  fell  jealousy, 
Which  troubles  oft  the  'bed  of  blessed  marriages, 
Thrust  in  between  the  paction  of  these  kingdoms, 
To  make  divorce  of  their  incorporate  league." 

(Henry  V,  Act  V,  Scene  II.) 
Warwick  and  Queen  Margaret  contract  to  marry  the  Prince  to 
the  former's  daughter,  in  3'  Henry  VI,  as  follows:  "War.  .  .  . 
if  our  queen  and  this  young  prince  agree,  I'll  join  mine  eldest 
daughter  and  my  joy,  To  him  forthwith,  in  holy  wedlock  bonds. 
Q.  Mar.  Yes,  I  agree  and  thank  you  for  your  motion: — Son 
Edward,  she  is  fair  and  virtuous,  Therefore  delay  not,  give  thy 
hand  to  Warwick;  And,  with  thy  hand,  thy  faith  irrevocable, 
That  only  Warwick's  daughter  shall  be  thine. 

Prince.  Yes,  I  accept  her,  for  she  well  deserves  it;  And  here, 
to  pledge  my  vow,  I  give  my  hand."     (Act  III,  Scene  III.) 

Speaking  of  his  contemplated  union  with  Elizabeth,  Richmond 
said  in  King  Richard  III: 

"Richm.     .     .    O,  now,  let  Richmond  and  Elizabeth. 
The  true  succeeders  of  each  royal  house, 
By  God's  fair  ordinance  conjoin  together." 

(Act  V,  Scene  IV.) 


CHAPTER  II. 

"TWO    GENTLEMEN    OF    VERONA." 

Sec.  4.  Judgment  unreversed — Tendered. 

5.  Setting  up  new  plea — Repealing  former. 

Sec.  4.    Judgment  unreversed — Tendered — 
"Pro.     Ay,  ay;  and  she  hath  offered  to  the  doom,  which 
{unreversed)  stands  in  effectual  force,  A  sea  of  melt- 
ing  pearl,    which    some    call    tears,    Those    at    her 
father's  churlish  feet,  she  tendered."1 

That  the  word  "doom"  in  the  verse  quoted,  is  used  in 
the  sense  of  judgment,  is  apparent  from  the  subject  mat- 
ter and  scope  of  the  context.  A  judgment  "unreversed" 
is  one  not  annulled  or  set  aside  by  the  decision  of  a  higher 
or  superior  court,  possessing  power,  on  appeal  or  writ  of 
error  to  set  aside  or  annull  the  judgment,  sentence  or  de- 
cree of  an  inferior  court.2  Until  reversed,  a  judgment  is, 
of  course  "in  effectual  force"  and  all  the  remedies  of  the 
owner  can  be  taken  advantage  of.  The  use  of  the  terms 
in  the  way  they  are  used,  shows  an  accurate  and  proper 
knowledge  of  the  remedial  procedure  of  the  English 
Courts. 

Tender,  from  the  Latin  tendere,  to  extend  or  offer,  is 
something  delivered  or  offered  under  such  circumstances 
as  to  require  no  further  act  on  the  part  of  the  party  mak- 
ing the  tender,  to  end  the  controversy.3  The  thought  is, 
that  the  tears  were  tendered  as  all  that  remained  to  be 
offered,  in  the  hope  that  they  would  reverse  the  judgment 
or  decree  of  banishment  or  exile. 


'Two  Gentlemen  of  Verona,  Act  III,  Scene  I. 
2  9   Carr   &   P.    513;    Bouvier,   Law    Diet. 
'Bouvier,  Law  Diet. 

King  Edward,  in  Richard  III,  asks  as  to  Clarence's  death: 
"K.  Edw.  Is  Clarence  dead?  the  order  was  revers'd."  (Act  II, 
Scene   I.) 

(26) 


THE  LAW  IN  SHAKESPEARE.  27 

Sec.  5.    Setting  up  new  plea. — Repealing  former — 

"Duke.     .     .     .     Know  then,  I  here  forget  all  former 
griefs, 
Cancel  all  grudge,  repeal  thee  home  again. 
Plead  a  new  state,  in  thy  unrivall'd  merit, 
To  which  I  thus  subscribe."1 

The  Duke,  in  these  lines,  suggests  to  Valentine  that  he 
will  cancel  his  banishment  and  repeal  the  judgment  of 
banishment,  and  that  if  he  will  file  a  new  plea,  based  upon 
his  unrivalled  merit,  he  himself  will  recognize  it  and  this 
will  give  it  validity,  for  possessing  the  power  and  authority 
to  sustain  or  reject  the  plea  offered,  the  Duke's  assurance 
is  a  practical  affirmance  of  the  validity  of  the  plea  sug- 
gested.2 

1  Two  Gentlemen  of  Verona,  Act  V,  Scene  IV. 

2  See  Rolfe's  Two  Gentlemen  of  Verona,  p.  185,  notes. 

Tarquin  is  made  to  reflect,  in  The  Rape  of  Lucrece:  "Why- 
hunt  I  then  for  color  or  excuses?  All  orators  are  dumb  when 
beauty  pleadeth."     (267,  268.) 


CHAPTER  III. 

"MERRY   WIVES   OF  WINDSOR." 

Sec.  6  Contempt  of  Court — Star-Chamber. 

7.  Compromising  slanders. 

8.  Right  of  Egress  and  Regress. 

9.  Fee-Simple — Fine  and  Recovery — Waste. 

Sec.  6.    Contempt  of  Court — Star-Chamber.— 

"Shot.  Sir  Hugh,  persuade  me  not;  I  will  make  a  star- 
chamber  matter  of  it ;  if  he  were  twenty  Sir  John  Fal- 
staffs,  he  shall  not  abuse  Robert  Shallow,  Esquire. 

Slen.  In  the  county  of  Gloster,  justice  of  peace  and  Coram. 

Shal.   Ay,  cousin  Slender,  and  Custalorum. 

Slen.  Ay,  and  Batolorum,  too;  and  a  gentleman  born, 
master  parson,  who  writes  himself  Armigero;  in  any 
bill,  warrant,  quittance,  or  obligation,  Armigero."  * 

This  verse  is  tantamount  to  a  declaration  to  proceed  in 
a  summary  way,  against  the  offender,  for  a  contempt  of 
the  authority  of  the  speaker.  The  court  of  Star-Cham- 
ber — named  no  doubt  because  of  the  stars  which  studded 
the  roof  of  the  place  where  the  court  was  originally  held,2 
was  composed  of  divers  spiritual  and  temporal  Lords,  who 
were  members  of  the  privy  council,  and  two  common  law 
judges.3  This  court  assumed  jurisdiction  in  contempt 
proceedings  and  its  jurisdiction  extended  originally  to 
riots,  misbehaviors  of  officers  and  other  misdemeanors.  It 
always  acted  in  a  summary  manner  and  without  a  jury,4 
hence  the  threat,  to  inflict  summary  punishment,  by  the 
medium  of  such  a  proceeding,  which  had  become  very 
odious  to  the  people  of  England.5 

1  Merry  Wives  of  Windsor,  Act  I,  Scene  I. 

2  Coke,  4th  Inst,  66. 

»3  Hen.  VII,  c.  1  and  21  Hen.  VIII,  c.  20. 

4  Hudson,  Court  Star  Chamber;   4  Bl.  Com.  266. 

6 16  Car.  1.  c.  10. 

(28) 


MERRY  WIVES  OF  WINDSOR.  29 

Coram,  means  before,  and  by  the  writ  coram  vobis1  or 
coram  nobis,2  from  the  King's  bench,  the  record  was 
brought  before  you,  or  before  us,  as  the  case  might  be,  for 
the  inspection  of  the  King's  Justices.  Of  course  the  writ 
had  no  application  to  such  inferior  courts  as  those  of  jus- 
tices of  the  peace. 

Custos  Rotulorum,  meant  Keeper  of  the  Rolls;  was  the 
principal  justice  of  the  peace  of  a  county  and  the  custo- 
dian of  the  records.3 

An  Armiger  was  an  armor-bearer,  or  Esquire,  and  the 
term  was  applied  as  a  title  of  dignity  to  gentlemen  bear- 
ing the  arms.4 

Sec.  7.    Compromising  slanders. — 

"Evans.  ...  If  Sir  John  Falstaff  have  committed 
disparagements  unto  you,  I  am  of  the  church  and 
will  be  glad  to  do  my  benevolence  to  make  atone- 
ments and  compromises  between  you."8 

Pope  changes  the  word  as  used  in  the  above  lines  to 
"compromises,"  but  it  is  probable  that  the  Poet  intended 
the  word  to  be  used  as  a  blunder,  as  it  is  printed.8    The 

1       Bl.  Com.  406,  note. 

8  1  Archbold  Pr.  234. 

8  1  Bl.  Com.  349;  4  Bl.  Com.  272;   3  Stephen,  Com.  37. 

*  Bouvier's  Law.  Diet. 

In  2'  Henry  IV,  in  speaking  of  the  contempt  committed  upon 
the  person  of  the  Chief  Justice,  by  the  Prince  of  Wales,  the 
Chief  Justice  said: 

"Ch.  Jus.    .     .    in  the  administration  of  his  law, 
Whiles  I  was  busy  for  the  commonwealth, 
Your  highness  pleased  to  forget  my  place, 
The  majesty  and  power  of  law  and  justice, 
The  image  of  the  king,  whom  I  presented, 
And  struck  me  in  my  very  seat  of  judgment." 

(Act  V,  Scene  II.) 
Saturninus,  in  Titus  Andronicus,  thus  delivers  himself:   "Sat. 
Was  ever  seen,  an  emperor  of  Rome,  thus  o'er  borne,  Troubled, 
confronted  thus:    and,  for  the  extent  of  equal  justice,  us'd  In 
such  contempt?"     (Act  IV,  Scene  IV.) 

*  Merry  Wives  of  Windsor,  Act  I,  Scene  I. 

*  Rolfe's  Merry  Wives  of  Windsor,  149,  notes. 


30  THE  LAW  IN  SHAKESPEARE. 

thought  is,  that  the  Parson,  as  an  act  of  benevolence  or 
charity,  on  his  part,  will  use  his  good  offices  to  bring  about 
a  settlement  between  Shallow  and  Falstaff  of  all  differ- 
ences growing  out  of  Falstaff  s  slandering  the  former.  A 
compromise,  is  a  legal  contract  whereby  two  parties  by  a 
mutual  understanding  settle  and  adjust  a  difference  be- 
tween themselves.1 

Sec.  8.    Right  of  Egress  and  Regress. — 

"Host.     My  hand,  bully;  thou  shalt  have  egress  and  re- 
gress; said  I  well;  and  thy  name  shall  be  Brook."2 

This  was  a  promise  of  the  right  to  go  out  and  return, 
vouchsafed  to  one  holding,  by  covenant,  the  right  of  egress 
and  regress,  at  common  law. 

The  right  guaranteed  by  the  use  of  the  words,  ingress, 
egress  and  regress,  in  common  law  leases  of  real  property 
or  of  the  mines  or  precious  metals  therein,  preserved  to  the 
lessee  the  privilege  of  entering,  going  upon  and  returning 
from  the  lands  demised  in  the  lease.3  The  words  usually 
employed  are  ingress  and  egress,  meaning  the  right  to 
enter  upon  and  go  from  the  lands  conveyed.4  The  use  of 
the  words,  in  the  sense  used  in  the  above  verse,  however, 
is  not  inappropriate,  as  they  embrace  the  right  to  go 
from,  as  well  as  to  return  upon  the  premises. 

1  Lawson  on  Contracts   (3d  ed.). 

3  Merry  Wives  of  Windsor,  Act  II,   Scene   I. 

3  Bouvier,  Law  Diet.,  Atk.  Conv. 

4  White,  Mines  and  Mining  Remedies,  Sec.  124.  Without  a  spe- 
cial reservation  of  the  right  of  ingress  and  egress,  in  a  lease 
of  minerals,  in  land,  this  easement  attaches  as  a  necessary  inci- 
dent of  the  demise  and  the  lessee  would  have  a  reasonable  use 
of  the  surface  and  subsoil,  as  well  as  a  right  to  enter  upon  and 
leave  the  premises  to  extract  the  minerals.  Such  easements 
would  be  held  to  be  but  incidental  to  the  express  grant  in  the 
lease.  White,  Mines  &  Mining  Remedies,  Sec.  124,  p.  171.  The 
duty  of  providing  safe  means  of  ingress  and  egress  to  and  from 
mines,  is  held  to  be  imposed  by  operation  of  law,  on  the  em- 
ployer operating  a  mine  and  by  many  states  in  the  United  States, 
now,  statutes  have  been  passed  on  this  subject.  White,  Personal 
Injuries  in  Mines,  Sec.  27  and  citations. 


MERRY  WIVES  OF  WINDSOR.  31 

Sec.  9.    Fee-simple — Fine  and  Recovery— Waste. 

"Mrs.  Page.  The  spirit  of  wantonness  is,  sure  scared  out  of 
him;  if  the  devil  have  him  not  in  fee-simple,  with 
fine  and  recovery,  he  will  never,  I  think,  in  the  way 
of  waste,  attempt  us  again."1 

The  thought  here  expressed  is,  that  unless  the  devil 
himself  owned  Falstaff,  by  the  highest  estate  known  to  the 
law,  by  acknowledgment  of  record,  in  court,  his  punish- 
ment had  been  sufficient  to  prevent,  or  dissuade  him  from 
his  desire  to  commit  further  spoilation.  A  fee  simple 
estate  is  delined  to  be  "a  freehold  estate  of  inheritance, 
free  from  conditions  and  of  indefinite  duration."2  It  is 
the  highest  estate  known  to  the  law  and  is  absolute,  so  far 
as  it  is  possible  for  one  to  possess  an  absolute  right  of 
property  in  lands.3 

The  common  law  proceeding  by  fine  and  recovery  was 
an  amicable  proceeding  in  court,  by  which  one  of  the  par- 
ties litigant,  acknowledged,  of  record,  that  the  lands  in 
controversy  belonged  absolutely  to  the  other.4 

Waste  is  any  unlawful* act  of  spoilation  or  destruction 
done  or  permitted  to  lands  or  other  corporeal  heredita- 
ments, to  the  prejudice  of  the  reversioner  or  lawful  owner.* 
It  may  consist  in  either  diminishing  its  value,  in  increas- 
ing its  burdens,  or  in  destroying  or  changing  the  evi- 
dences of  title  to  the  inheritance.6  Regarding  the  object 
of  his  passion,  as  the  inheritance  of  her  husband,  it  can 
not  well  be  doubted  that  if  Falstaff  had  accomplished  his 
purpose,  the  value  of  such  "inheritance"  would  have  been 
correspondingly  diminished;  her  burdens  increased  and 
the  rights  of  the  husband  violated. 

1  Merry  Wives  of  Windsor,  Act  IV,  Scene  II. 

2Tiedeman,  R.  P.  (3d  ed.)  29;  2  Bl.  Com.  106;  1  Preston, 
Est.  420;  1  Washburn,  R.  P.  51;  Litt.  Sec.  1. 

'Tiedeman,  R.  P.  (3'  ed.)  Sec.  29;  Plowd.  557;  Atk.  Conv. 
183;   2  Bl.  Com.  106. 

4  Bacon,  Abr.  Fine  &  Recoveries;  Coke,  Litt.  120;  2  Bl.  Com. 
349. 

sTiedeman,  R.  P.  (3'  ed.)  Sec.  60;  4  Kent's  Comm.  316;  Coke, 
Litt.  53b;  Bacon,  Abr.  Waste;  2  Rolle,  Abr.  817. 

•  2  Bl.  Com.  281;  Huntley  vs.  Russell,  18  Q.  B.  588. 


32  THE  LAW  IN  SHAKESPEARE. 

In  Comedy  of  Errors,  the  following  colloquy  occurs  between 
Dromio  and  Antipholus:  "Dro...  There's  no  time  for  a  man  to  re- 
cover his  hair,  that  grows  bald  by  nature. 

Ant.    May  he  not  do  it  by  fine  and  recovery? 

Dro.  Yes,  to  pay  a  fine  for  a  peruke,  and  recover  the  lost  hair 
of  another  man." (Act  II,  Scene  II.) 

Commenting  on  this  verse,  Mr.  Cushman  K.  Davis,  in  his 
"Law  in  Shakespeare,"  has  this  to  say:  "This  is  a  lawyer's  pun 
and  would  never  have  occurred  to  anyone  but  a  lawyer.  There 
is  also  here  a  very  abstruse  quibble  in  the  use  of  the  words,  're- 
cover the  lost  hair  of  another  man,'  for  the  effect  of  a  fine  and 
recovery  was  to  bar  not  only  the  heirs  upon  whom  the  lands 
were  entailed,  but  all  the  world."  Davis'  Law  in  Shakespeare 
(2nd  ed.),  p.  133. 

In  King  John  (Act  II,  Scene  I),  Constance  said  to  Elinor: 
"Draw  those  heaven-moving  pearls  from  his  poor  eyes;  which 
heaven  shall  take  in  nature  of  a  fee." 

In  Troilus  and  Cressida,  Thersites  speaks  of  the  Fee-simple  of 
the  tetter,  as  follows: 

"Ther.  .  .  incurable  bond-ache,  and  the  rivalled  fee-simple 
of  the  tetter;  take  and  take  again,  such  preposterous  discoveries." 

In  delivering  his  curse  upon  Patroclus,  Thersites  intimates  that 
he  has  the  "tetter,"  or  a  disease  of  the  skin,  for  life  and  as  a 
hereditament,  to  transmit  to  his  posterity,  if  he  has  any.  In 
other  words,  he  has  such  disease  by  the  highest  and  best  title, 
i.  e.,  by  a  fee-simple  holding.     (Act  V,  Scene  I.) 

In  Romeo  and  Juliet,  Benvolio  and  Mercutio  speak  of  the  fee- 
simple  of  the  former's  life,  as  follows:  "Ben.  An  I  were  so  apt 
to  quarrel  as  thou  art,  any  man  should  buy  the  fee-simple  of  my 
life,  for  an  hour  and  a  quarter. 

Mer.    The  fee-simple.     O  simple."     (Act  III,  Scene  I.) 

Kent  advises  the  King,  in  King  Lear:  "Kill  thy  physician,  and 
the  fee  bestow  upon  the  foul  disease."     (Act  I,  Scene  I.) 

The  Captain  tells  Hamlet,  in  referring  to  the  war  to  recover 
the  land  of  Portinbras: 

"Cap.    We  go  to  gain  a  little  patch  of  ground, 
That  hath  in  it  no  profit  but  the  name. 
To  pay  five  ducats,  five,  I  would  not  farm  it; 
Nor  will  it  yield  to  Norway,  or  the  Pole, 
A  ranker  rate,  should  it  be  sold  in  fee." 

(Act  IV,   Scene  IV.) 


MERRY  WIVES  OF  WINDSOR.  33 

The  maid  described  how  she  had  given  her  lover  the  best  she 
had,  in  A  Lover's  Complaint: 

"My  woeful  self,  that  did  in  freedom  stand, 
And  was  my  own  fee-simple,  not  in  part, 
What  with  his  art  in  youth  and  youth  in  art, 
Threw  my  affections  in  his  charmed  power, 
Reserved  the  stalk  and  gave  him  all  my  flower." 

(143,    147.) 


CHAPTER  IV. 

"TWELFTH  NIGHT." 

Sec.  10.  Exceptions — Improper  conduct. 

11.  Proof — Admission  against  interest. 

12.  Misprison. 

13.  Sheriff's  post. 

14.  Misdemeanors. 

15.  Grand-jury. 

16.  Windy  side  of  the  law. 

17.  Action  of  battery. 

18.  Party  plaintiff. 

Sec.  10.    Exceptions — Improper  conduct. — 

"Mar.  By  troth,  Sir  Toby,  you  must  come  in  earlier  o' 
nights;  your  cousin,  my  lady,  takes  great  exceptions 
to  your  ill  hours. 

Sir  To.     Why,  let  her  except,  before  excepted. 

Mar.  Ay,  but  you  must  confine  yourself  within  the  mod- 
est limits  of  order."1 

This  verse  refers  to  the  method  of  trial  adopted  to  pre- 
serve the  errors  of  the  trial  court,  for  the  review  of  the 
higher  court.  As  errors  occur —  or  a  litigant  fails  to  con- 
fine himself  "within  the  modest  limits  of  order,"  an  ex- 
ception is  noted  on  the  records  of  the  trial  court,  and,  at 
the  conclusion  of  the  trial,  or  within  a  time  fixed  by  the 
court,  these  various  errors  are  presented  and  signed  by  the 
trial  judge,  as  a  bill  of  exceptions,  upon  which  the 
errors  of  the  trial  court  are  reviewed  on  appeal.2  Bills  of 
exception  were  authorized  by  Statute3  in  England,  in  an 
early  day  and  the  practice  obtains  in  the  United  States 
to  the  present  day. 

1  Twelfth  Night,  Act  I,  Scene  III. 
J  8  East  280 ;  Douvier,  Law  Diet. 
3Westm.   2nd    (13  Edw.  1)    c.  31. 

Iago  tells  Roderigo,  in  Othello:  "Give  me  thy  hand,  Roderigo: 
Thou  hast  taken  against  me,  a  most  just  exception;  but,  yet  I 
protest,  I  have  dealt  most  directly  in  thy  affair."     (Act  IV,  Scene  II.  ( 

(34) 


TWELFTH  NIGHT.  35 

Sec.  11.    Proof — Admission  against  interest. — 

"Oli.    Make  your  proof. 

Clo.     I  must  catechise  you  for  it,  madonna;  good  my 

mouse  of  virtue,  answer  me. 
Oli.     Well,  sir,  for  want  of  other  idleness,  I 'll'bide  your 

proof. 
Clo.    Good  madonna,  why  mourn'st  thou? 
Oli.    Good  fool,  for  my  brother's  death. 
Clo.    I  think,  his  soul  is  in  hell,  madonna. 
Oli.    I  know  his  soul  is  in  heaven,  fool. 
Clo.     The  more  fool  you,  madonna,  to  mourn  for  your 

brother's  soul,  being  in  heaven. — Take  away  the  fool, 

gentlemen."1 

The  proof  by  which  the  clown  here  establishes  the  fact 
attempted  to  be  proven  is  by  that  method  of  proof  known 
as  securing  an  admission  against  interest.  To  prove  a 
fact  is  to  determine  or  establish,  by  competent  evidence, 
that  such  fact  exists  or  does  not  exist2  The  proof  ad- 
duced here  comports  to  the  proper  method  of  establishing 
a  fact  in  a  court  of  justice,  for  after  the  premise  and  argu- 
ment of  the  fact  to  be  established,  the  strongest  proof  is 
the  admission  against  interest,  for  this  kind  of  proof,  be- 
cause it  is  against  the  interest  of  the  party  making  the 
admission,  carries  the  strongest  probative  force.3  After 
admitting  that  her  brother's  soul  was  in  heaven,  the  con- 
clusion is  drawn  that  none  but  a  food,  would  mourn,  and 
thus  the  fact  is  established  that  the  mistress  is  a  fool,  by 
her  own  admission. 


1  Twelfth  Night,  Act  I,  Scene  V. 
'Ayliffe,  Parerg.  442;  Greenl.  Evid. 
"Greenl.  Evid. 

Flavius,  on  his  return  to  Timon  of  Athens,  with  no  funds,  said 
to  his  lord,  by  way  of  further  assurance  of  his  failure  to  bor- 
row of  his  friends:  "Flav.  If  you  suspect  my  husbandry,  or 
falsehood,  Call  me  before  the  exactest  auditors,  And  set  me  on 
the  proof."     (Act  II,  Scene  II.) 

After  he  had  been  poisoned  against  his  wife,  by  Iago,  Othello 
tells  him:  "By  the  world,  I  think  my  wife  be  honest,  and  think 
she  is  not;  I  think  that  thou  art  just,  and  think  thou  art  not; 
I'll  have  some  proof."     (Act  III,  Scene  III.) 


36  THE  LAW  IN  SHAKESPEARE. 

Sec.  12.    Misprison. — 

"Clo.  Misprison  in  the  highest  degree; — Lady,  cucullus 
non  facit  manachum;  that's  as  much  as  to  say,  I  wear 
not  motley  in  my  brain.  Good  madonna,  give  me 
leave  to  prove  you  a  fool?"1 

Misprison  is  a  term  used  in  the  criminal  law  to  signify 
all  misdemeanors,  not  given  some  particular  name  by  the 
law  creating  the  "offense.2  Misprisons  are  either  negative, 
as  where  the  commission  of  a  crime  is  concealed,3  or  posi- 
tive misprison,  which  is  the  commission  of  an  offense  not 
otherwise  catalogued.4  Misprisons  positive  are  also  de- 
nominated contempts  or  high  misprisons,6  as  referred  to 
in  this  verse. 


twelfth  Night,  Act  I,  Scene  V. 

2  Coke,  3d  Inst,  36. 

*1  East  PI.  Cr.  139;   1  Russell,  Crimes,  43. 

*  Bl.  Com.  9. 

5  4  Bl.  Com.  126.      . 

The  term,  "misprison,"  as  one  most  familiar  to  the  Poet,  is 
used  in  various  places  to  indicate  an  offense,  not  otherwise  classi- 
fied, as  at  law.     Thus: 

"Obe.    What  hast  thou  done?  thou  hast  mistaken  quite 
And  laid  the  love-juice  on  some  true-love's  sight; 
Of  thy  misprison  must  perforce  ensue, 
Some  true-love  turned,  and  not  a  false  turn'd  true." 

(Midsummer  Night's  Dream,  Act  III,  Scene  II.) 

"Misprison"  is  also  used  in  Love's  Labour's  Lost,  in  the  fol- 
lowing couplet: 

"Biron.     A  fever  in  your  blood,  why,  then  incision, 
Would  let  her  out  in  saucers;   Sweet  misprison." 

(Act  IV,  Scene  III.) 

The  Earl  of  Northumberland  is  made  to  say  in  1'  Henry  IV 
(Act  I,  Scene  III):  "North.  .  .  .  Either  envy  therefore,  or 
misprison  is  guilty  of  this  fault,  and  not  my  son." 

Speaking  of  the  gift  of  his  friend  to  himself,  the  Poet  uses  the 
word  misprison,  in  the  LXXXVII  Sonnet: 

"So  thy  great  gift,  upon  misprison  growing, 
Comes  home  again,  on  better  judgment  making."    (11,  12.) 


TWELFTH  NIGHT.  37 

Sec.  13.    Sheriff's  post.— 

"Mai.  ...  he  says,  he'll  stand  at  your  door  like 
a  sheriff's  post,  and  be  the  supporter  to  a  bench,  but 
he'll  speak  with  you."1 

Sheriffs  and  such  public  officers  have  to  give  notice  of 
the  proclamations  and  sales,  under  the  process  of  the  court, 
of  which  they  are  officers,  and  this  gave  rise,  in  ancient 
times,  to  the  custom  of  such  officers  erecting  a  post,  at  the 
front  door  of  their  houses,  upon  which  they  usually  posted 
one  of  these  proclamations  or  advertisement  of  sales,  or 
other  legal  process  delivered  to  them  for  service  by  publi- 
cation.2 As  such  ministerial  officers  supported  the  judg- 
ment seat,  or  "bench"  by  executing  the  decrees  of  the 
court,  it  is  probable  that  this  line  means  that  the  post, 
used  by  the  sheriff  for  this  purpose,  carried  out  and  helped 
to  execute  the  decrees  of  the  court  and  in  this  manner 
"supported"  the  "bench." 

Sec.  14.    Misdemeanor. — 

"Mai.  Sir  Toby,  I  must  be  round  with  you.  My  lady 
bade  me  tell  you,  that,  though  she  harbours  you  as 
her  kinsman,  she's  nothing  allied  to  your  disorders. 
If  you  can  separate  yourself  and  your  misdemeanors, 
you  are  welcome  to  the  house;  if  not,  and  it  would 
please  you  to  take  leave  of  her,  she  is  very  willing  to 
bid  you  farewell."3 

The  term  "misdemeanor"  is  generally  used  in  contra- 
distinction to  felony,  and  it  includes  all  the  offenses  known 
to  the  criminal  law,  inferior  to  the  more  important  crimes, 
known  as  felonies.4  All  indictable  offenses,  not  amount- 
ing to  felonies,  such  as  libels,  assaults  and  batteries,  nui- 
sances, riots  and  such  inferior  offenses,  are  classed  as  mis- 


1  Twelfth  Night,  Act  I,  Scene  V. 

2  Rolfe's  Twelfth  Night,  p.  159,  notes. 

3  Twelfth  Night,  Act  II,  Scene  III. 

4  Sherwood's  Criminal  Law;  4  Bl.  Com.  5. 


38  THE  LAW  IN  SHAKESPEARE. 

demeanors,  punishable  by  fine  or  imprisonment  in  jail, 
as  distinguished  from  the  more  important  crimes  such  as 
murder,  arson,  forgery,  and  the  like  crimes,  punishable 
by  death  or  a  term  in  the  penitentiary.1 

Sec.  15.    Grand- jury. — 

"Fab.     I  will  prove  it  legitimate,  sir,  upon  the  oaths  of 

judgment  and  reason. 
Sir  To.     And  they  have  been  grand-jurymen  since  before 

Noah  was  a  sailor."  2 

As  grand-jurymen  sit  upon  the  different  offenses  known 
to  the  law  and  indict  or  exonerate  citizens  for  charges 
brought  against  them,  the  proper  discharge  of  such  duties, 
requires  both  reason  and  sound  judgment.  Hence  the 
comparison  made,  that  reason  and  judgment  have  been 
grand- jury  men  since  before  Noah  was  a  sailor.  Of  course 
the  institution  does  not  date  to  any  such  prehistoric  times, 
but  there  is  reason  to  believe  that  this  institution  existed 
among  the  Saxons3  and  it  is  certain  that  in  the  12th  cen- 
tury (by  Statute  10'  Hen.  II)4  if  the  institution  did  not 
exist  before,  it  was  established  in  England,  since  which 
time  it  has  existed  uninterruptedly.5 


i  Bishop's  Cr.  Law;  4  Bl.  Com.  5. 

a  Twelfth  Night,  Act  III,  Scene  II. 

3Crabb,  Eng.  Law,  35. 

4  Enacted  in  1164. 

6  4  Bl.  Comm.  302;  2  Russell,  Crimes,  616. 

In  r  Henry  IV,  Falstaff  thus  addresses  the  Travelers:  "Fal. 
You  are  grand-jurors,  are  ye?  We'll  jure  ye,  i'faith."  (Act  II, 
Scene  II.) 

Timon  of  Athens,  makes  the  leopard  spots  jurors  on  the  life 
of  the  leopard,  when  the  lion  is  near.  He  says  to  Apemantus: 
"Tim.  Wert  thou  a  leopard,  thou  wert  german  to  the  lion,  and 
the  spots  of  thy  kindred  were  jurors  on  thy  life;  all  thy  safety 
were  remotion."     (Act  IV,  Scene  III.) 


TWELFTH  NIGHT.  39 

Sec.  16.    Windy  side  of  the  law. — 

"Sir  To.     I  will  waylay  thee  going  home ;  where,  if  it  be 

thy  chance  to  kill  me, — 
Fab.    Good. 

Sir  To.    Thou  killest  me  like  a  rogue  and  a  villain. 
Fab.    Still  you  keep  o'  the  windy  side  of  the  law :  good."1 

The  thought  here  expressed  is,  although  the  speaker 
should  "lie  in  wait"  and  thus  show  premeditation,  look- 
ing to  the  physical  injury  of  Viola,  still  he  would  keep 
clear  of  the  law,  because,  instead  of  making  any  threat  to 
cause  any  bodily  harm,  his  purpose  was  not  so  expressed 
in  waiting  for  him.  In  other  words,  while  there  was  a 
"lying  in  wait,"  there  was  a  total  absence  of  any  premedi- 
tation to  inflict  bodily  harm,  hence  the  speaker  kept  next 
the  wind,  or  on  the  windward  side  of  the  law,  meaning 
that  he  thereby  adopted  precautionary  measures  for  his 
security.2 


1  Twelfth  Night,  Act  III,  Scene  IV. 

For  distinction  between  premeditation  and  simply  lying  in 
wait,  see  Dane,  Abr,  But  lying  in  wait  is  usually  evidence  of 
premeditation. 

2  Webster,  Dictionary.    See  Rolfe's  Twelfth  Night,  p.  197,  notes. 

In  Romeo  and  Juliet,  the  servants  of  Capulet,  before  provoking 
a  quarrel  with  those  of  Montague,  discuss'd  how  the  law  could  be 
placed  on  their  side  and  Sampson  said:  "Let  us  take  the  law  on 
our  sides;  let  them  begin."  (Act  I,  Scene  I.) 

And  when  Abram  bit  his  thumb  at  them,  Sampson  asked:  "Is 
the  law  on  our  side,  if  I  say — ay?"   (idem). 

Peter  tells  the  nurse  and  Romeo,  in  Romeo  and  Juliet:  "I 
dare  draw  as  soon  as  another  man,  if  I  see  occasion  in  a  good 
quarrel,  and  the  law  on  my  side."     (Act  II,  Scene  IV.) 

In  Gannon  vs.  Pauk,  (200  Mo.  p.  86)  Judge  Lamm,  construes  the 
"windy  side"  of  the  law,  as  the  cold  side,  when  he  observes: 
"There  is  a  'windy,'  that  is,  a  cold  side  of  the  law,  now  as  form- 
erly (Twelfth  Night,  Act  III,  Scene  IV.)  and  the  law  turns  a  cold 
face  (a  windy  side)  to  perpetuities  and  the  tying  up  of  landed 
properties  by  entailment." 


40  THE  LAW  IN  SHAKESPEARE. 

Sec.  17.    Action  of  battery. — 

"Sir  And.  Nay,  let  him  alone,  I'll  go  another  way  to 
work  with  him ;  I'll  have  an  action  of  battery  against 
him,  if  there  be  any  law  in  Illyria;  though  I  struck 
him  first,  yet  its  no  matter  for  that."1 

A  battery  is  any  unlawful  beating  or  other  wrongful 
physical  violence  inflicted  upon  a  person,  without  his  con- 
sent.2 A  battery  is  usually  justifiable  in  the  necessary  de- 
fense of  one's  person  against  the  assaults  of  his  assailant, 
but  the  force  used  must  be  only  such  as  is  necessary  to 
repel  the  attack  made.3  Force  may  be  used  only  to  avert 
an  impending  evil  and  to  prevent  a  person  from  being 
overwhelmed,  but  not  as  a  punishment  or  by  way  of 
retaliation  for  an  injurious  assault.4  Any  addition  of  spe- 
cific ultimate  wrong  or  means  by  which  additional  danger 
is  inflicted  generally  is  held  to  increase  the  offense  of  bat- 
tery,5 hence,  the  conclusion  of  the  speaker,  "though  I 
struck  him  first,  yet  its  no  matter,"  since  in  strict  legal 
aspect,  the  previous  treatment  would  not  have  justified  the 
punishment  subsequently  inflicted  and  an  action  for  dam- 
ages would  lie  therefor. 


twelfth  Night,  Act  IV,  Scene  I. 
2  2  Bishop's  Cr.  Law,  Sec.  62. 
8  2  Bishop's  Cr.  Law,  561. 

4  Ante.  idem.    Strange,  593. 

5  2  Bishop's  Cr.  Proc.  Sees.  64,  65. 

Enobarbus  is  made  to  say,  in  Antony  and  Cleopatra: 
"Eno.    .     .     .    All  take  hands. — 

Make  battery  to  our  ears  with  the  loud  music:  — 
The  while,  I'll  place  you."     (Act  II,  Scene  VI.) 
Lysimachus,    in    Pericles,    Prince    of    Tyre,    speaking    of    the 
charms  of  Marina,  asserts  that  by  her  sweet  harmony  she  would 
allure  and  "make  a  battery  through  his  deafen'd  parts."     (Act 
V,  Scene  I.) 

Imogen  threatens  Iachimo,  on  his  intemperate  proposal  to  her, 
in  Cymbeline,  as  follows: 

"Imo.     The  king,  my  father,  shall  be  made  acquainted  of  thy 
assault."     (Act  I,  Scene  VII.) 


TWELFTH  NIGHT.  41 

Sec.  18.    Party  plaintiff. — 

"Oli     .     .     .     Pry 'thee  be  content ; 

This  practice  hath  most  shrewdly  passed  upon  thee; 

But,  when  we  know  the  grounds  and  authors  of  it, 

Thou  shalt  be  both  the  plaintiff  and  the  judge 

Of  thine  own  cause."1 

Of  course  this  would  be  an  unheard  of  legal  proceeding, 
wherein  a  party  was  also  a  judge  in  the  cause,  for  it  would 
lack  the  disinterested  element  which  must  always  charac- 
terize the  judge  of  any  controversy. 

A  party  plaintiff  in  a  personal  action  is  one  who  seeks  a 
remedy  for  an  injury  to  his  rights.2  After  such  person 
has  been  once  named  in  the  pleadings,  it  is  proper  to 
thereafter  refer  to  him  merely  as  the  "plaintiff,"  as  the 
reference  is  here  made.3 


In  King  John,  in  trying  to  dissuade  the  armies  from  battle, 
the  Citizen  thus  addressed  the  officers  present:  "This  union  can 
do  more  than  battery  can,  To  our  fast-closed  gates,  for  at  this 
match,"  etc.     (Act  II,  Scene  I.) 

In  Antony  and  Cleopatra,  Antony  tells  Eros: 
"Off,  pluck  off:  — 
The  seven-fold  shield  of  Ajax  cannot  keep 
The  battery  from  my  heart."     (Act  IV,  Scene  XIV.) 
Adonis  is  made  to  say  to  Venus,  in  Venus  and  Adonis:   "Dis- 
miss your  vows;   your  feigned  tears,  your  flattery;  For  where  a 
heart  is  hard  they  make  no  battery."     (425,  426.) 

In  A  Lover's  Complaint,  the  Poet  describes  the  "fickle  maid, 
full  pale,"  who  narrated  the  "sad-tun'd  tale"; 

"Sometimes  her  level'd  eyes  their  carriage  ride, 
As  they  did  battery  to  the  spheres  intend."     (22,  23.) 
The  maid,  in  A  Lover's  Complaint,  described  how  her  lover  had 
woo'd  her,  as  a  supplicant,  whose  sighs  extended,  "To  leave  the 
battery"  that  her  heart  made  against  his.     (276,  277.) 

twelfth  Night,  Act  V,  Scene  I. 
2  3  Bl.  Com.  25;  1  Chitty,  PI. 
81  Chitty,  PI.  (Gr.  Ed.)  266. 


CHAPTER  V. 

"MEASURE   FOR   MEASURE." 
Sec.  19.  Termes  of  the  Law. 

20.  Dead  Laws. 

21.  Custom  shaping  Laws. 

22.  Frailty  of  all  laws — Especially  jury  system. 

23.  Action  of  Slander. 

24.  Prostitution  before  the  Law. 

25.  Sentence. 

26.  Plea  for  Pardon. 

27.  Punishment  for  Seduction,  by  Venetian  Law. 

28.  The  severe  Judge. 

29.  Common  Law  marriage  contract. 

30.  Plea  for  Justice. 

31.  The  Equality  of  Justice. 

32.  The  Law  a  gazing-stock,  when  not  enforced. 

33.  Confession  of  guilt. 

34.  Loyalty  of  Attorney. 

35.  Intent,  distinguished  from  Wrongful  Act. 

36.  Breach  of  Promise. 

37.  Punishment  by  marriage  to  Prostitute. 

Sec.  19.    Terms  of  the  law.— 

"Duke.     .     .     .     The  nature  of  our  people, 
Our  city's  institutions,  and  the  terms 
For  common  justice,  you're  as  pregnant  in 
As  art  and  practice  hath  enriched  any 
That  we  remember."1 

By  "terms  for  common  justice,"  the  Poet  no  doubt 
refers  to  the  technical  language  of  the  law,  used  by  the 
courts  of  his  time. 

During  the  reign  of  Henry  VIII,  in  1527,  "Les  Termes 
de  la  Ley,"  a  scientific  old  law  book,  written  by  John  Ras- 
tell  in  French,  and  translated  by  his  son,  William,  ap- 
peared and  this  work  contained  an  exposition  of  the 
"terms"  of  the  law  then  most  commonly  in  use.2     It  is 

1  Measure  for  Measure,  Act  I,  Scene  I. 

2  There  seems  to  be  some  doubt  as  to  whether  the  father,  John, 
or  the  son  William,  wrote  this  work.  Coke,  Wood  and  others, 
attributed  it  to  the  son,  while  Bishop  Tanner,  Bale  and  others 

C42) 


MEASURE  FOR  MEASURE.  43 

possible  that  the  Poet  intended  to  refer  to  this  old  work, 
in  these  lines,  spoken  by  the  Duke.  * 

Sec.  20.    Dead  laws.— 

"Duke.     We  have  strict  statutes  and  most  biting  laws, 
(The  needful  bits  and  curbs  for  headstrong  steeds) 
Which  for  these  fourteen  years  we  have  let  sleep, 
Even  like  an  o'ergrown  lion  in  a  cave, 
That  goes  not  out  to  prey:  now,  as  fond  fathers, 
Having  bound  up  the  threat'ning  twigs  of  birch, 
Only  to  stick  it  in  their  children's  sight, 
For  terror,  not  to  use;  in  time  the  rod, 
Becomes  more  mocked  than  feared :  so  our  decrees, 
Dead  to  infliction,  to  themselves  are  dead; 
And  liberty  plucks  justice  by  the  nose; 
The  baby  beats  the  nurse,  and  quite  athwart 
Goes  all  decorum."2 

This  verse  shows  a  deep  insight  into  the  science  of  laws 
and  the  well-known  fact  is  recognized  that  a  failure  to 
enforce  the  laws  that  exist,  brings  about  chaos  in  the 
State.  The  poet  also  seems  possessed  of  the  deeper  in- 
sight, that  laws  are  necessarily  those  legal  principles  and 
rules  which  are  recognized  by  the  governing  power  of  the 
State,  whether  same  are  enforced  in  all  cases  or  not;  for 
the  law  is  not  the  less  a  law,  because  the  community  sees 
fit  not  to  enforce  it,  when  it  continues  to  be  recognized 
by  the  governing  body  as  a  law  of  that  community.  And, 
as  instanced  in  this  play,  even  a  departure  from  the  en- 
forcement of  the  strict  letter  of  the  law,  by  the  governing 
body,  itself,  does  not  repeal  the  law,  but  it  can  be  enforced, 
so  long  as  it  stands  unrepealed. 3 

claimed  it  for  the  father.  As  originally  published  the  title  page 
of  this  work  was  as  follows:  "Expositiones  Terminorum  Legum 
Anglorum,  et  Natura  Brevium,  cum  diversis  Casibus,  Regulis,  et 
Fundamentis  Legum  tarn  de  Libris  Magistri  Littletoni  quam  de 
aliis  Legum  Libris  collectis"  etc.,  but  the  text  was  in  French. 
IV  Reeve's  History  Eng.  Law,  p.  565. 

1  Rolfe's  Measure  for  Measure,  p.  151,  notes. 
a  Measure  for  Measure,  Act  I,  Scene  III. 
3    Montesquieu,  Esprit  des  Lois,  b.  1.,  c.  1. 


44  THE  LAW  IN  SHAKESPEARE. 

Sec.  21.    Custom  shaping  laws. — 

"Ang.     We  must  not  make  a  scarecrow  of  the  law 
Setting  it  up  to  fear  the  birds  of  prey, 
And  let  it  keep  one  shape,  till  custom  make  it 
Their  perch,  and  not  their  terror."1 

Custom  is  such  a  usage,  as  by  common  consent  and 
uniform  practice  has  become  the  law  of  a  place  or  of  a 
given  subject-matter.2  That  custom  may  not  only  change 
or  alter  law,  but  in  the  absence  of  law,  that  it  may  be 
crystallized  into  law,  is  a  well  recognized  fact,  which  the 
English  common  law  exemplifies.  The  common  law,  in 
fact,  was  made  up  of  customs  which  had  existed  from 
time  immemorial,  or  for  such  length  of  time  that  the 
"memory  of  man  runneth  not  to  the  contrary."3  General 
customs  apply  generally  to  a  whole  country  and  consti- 
tute general  laws,  while  special  customs  apply  only  to 
special  localities,  or  to  special  trades  or  vocations,  such  as 
the  mining  customs  of  the  western  states,  which  consti- 
tute some  of  our  American  common  law.4  A  custom, 
however,  cannot  generally  be  recognized,  if  it  is  in  the 
face  of  a  well-established  law,  for  not  only  must  it  be  a 
reasonable  custom,  but  one  that  is  not  illegal,  to  be  given 
effect  when  invoked  in  court.5 

1  Measure  for  Measure,  Act  II,  Scene  I. 

2  Bouvier's  Law  Diet. 
»1  Bl.  Comm.   76. 

4  White,  Mines  &  Min.  Rem.,  Sec.  69. 

5  Ante   idem.  Sec.  72. 

Lord  Sands  said,  in  King  Henry  VIII:     "Sands.     New  customs. 

though  they  be  never  so  ridiculous,  nay,  let  them  be  unmanly, 

yet  are  follow'd."     (Act  I,  Scene  III.) 

Ruminating  upon  the  custom  which  compels  him  to  seek  the 

support  of  the  citizens  for  his  preferment,  Coriolanus  said: 

"Cor.    Custom  calls  me  to't; 

What  custom  wills,  in  all  things,  should  we  do't, 

The  dust  on  antique  time  would  lie  unswept, 

And  mountainous  error  be  too  highly  heap'd 

For  truth  to  over-peer."  (Act  II,   Scene  III.) 


MEASURE  FOR  MEASURE.  45 

Sec.  22.    Frailty  of  all  laws — Especially  jury  system. — 

"Ang.     I  not  deny, 

The  jury  passing  on  the  prisoner's  life, 
May,  in  the  sworn  twelve,  have  a  thief  or  two, 
Guiltier  than  him  they  try:  what's  open  made  to  jus- 
tice, 
That  justice  seizes.     What  know  the  laws, 
That  thieves  do  pass  on  thieves?    'Tis  very  pregnant, 
The  jewel  that  we  find  we  stoop  and  take  it, 
Because  we  see  it;  but  what  we  do  not  see, 
We  tread  upon  and  never  think  of  it."1 

The  substantive  law  is  formed  of  customs,  acts  and 
adjudications  as  the  rights  to  be  passed  upon  arise.  For 
years,  many  rights  were  overlooked,  because  of  the  uni- 
versality of  the  law,  to  give  relief  in  cases  wherein  equity 
now  exercises  jurisdiction.  The  remedial  procedure,  be- 
ing dependent  wholly  on  man,  is  necessarily  more  or 
less  imperfect  and  this  objection  is  frequently  urged  to 
the  jury  system,  which  this  verse  notices.  But  imperfect 
as  it  is,  no  institution  has  ever  been  found  to  improve 
upon  it,  in  the  trial  of  questions  of  fact.  It  dates  from 
an  early  period  in  English  history  and  was  a  mode  of 
administering  justice  under  the  feudal  institutions  of 
France,  Germany  and  other  European  countries.2  It  was 
perpetuated  in  England  by  Magna  Charta  and  is  guaran- 
teed in  all  the  states  of  the  United  States.3 


The  Chorus,  in  the  character  of  Gower,  in  Pericles,  Prince  of 
Tyre,  thus  refers  to  custom:  "By  custom,  what  they  did  begin, 
Was,  with  long  use,  account  no  sin."     (Act  I,  Pro.) 

And  Othello  speaks  of  "the  tyrant  custom,"  which  "hath  made 
the  flinty  and  steel  couch  of  war,  My  thrice-driven  bed  of  down." 
(Act  I,  Scene  III.) 

1  Measure  for  Measure,  Act  II,  Scene  I. 

2 1  Reeves,  Hist.  Eng.  Law,  23,  84;  Bracton,  155;  GlanviDe,  c.  9. 

*  3  Bl.  Comm.  349;  Reeves,  Hist.  Eng.  Law,  supra. 


46  THE  LAW  IN  SHAKESPEARE. 

Sec.  23.    Action  of  slander. — 

"Elb.     Prove  this,  thou  wicked  Hannibal,  or  I'll  have 

mine  action  of  battery  on  thee. 
Escal.     If  he  took  you  a  box  o'  the  ear,  you  might  have 

your  action  of  slander  too."1 

This  is  satire,  of  course,  or  irony,  for  if  an  action  of 
battery  would  lie  for  a  slander,  then,  by  a  parity  of  rea- 
soning, the  conclusion  is  reached,  that  an  action  of  slan- 
der would  lie  for  a  battery.  As  distinguished  from  a  libel, 
which  is  written,  slander  is  generally  defined  as  spoken 
words,  derogatory  of  the  character  of  a  person.2  An  ac- 
tion of  slander  will  generally  lie  for  any  words  spoken  of 
another  which  impute  to  him  the  commission  of  a  crime, 
involving  moral  turpitude,3  so  if  the  construction  placed 
upon  the  words  spoken  here,  had  been  the  proper  one, 
since  an  offense  against  the  law  was  charged,  an  action 
of  slander  could  have  been  maintained,  not  one  of  bat- 
tery, as  the  Poet  clearly  shows. 


1  Measure  for  Measure,  Act  II,  Scene  I. 

2  Heard,  Libel  &  Slan.  Sec.  8. 
•Heard,  Libel  &  Slan.  Sec.  24. 

In  King  John  (Act  II,  Scene  I)  the  following  occurs  in  the 
colloquy  between  Constance  and  Elinor:  "Eli.  Thou  monstrous 
slanderer  of  heaven  and  earth. 

Const.  Thou  monstrous  injurer  of  heaven  and  earth,  call  not 
me  slanderer." 

In  King  Richard  II  (Act  V,  Scene  VI)  Bolingbroke  thus  replies 
to  Exton,  on  learning  of  King  Richard's  death: 
"Boling.    Exton,  I  thank  thee  not;    for  thou  hast  wrought 
A  deed  of  slander  with  thy  fatal  hand, 
Upon  my  head,  and  all  this  famous  land." 
In  King  Richard  II,  Mowbray  replies  to  Bolingbroke   (Act  I. 
Scene  I) : 

"Nor.    O,  let  my  sovereign  turn  away  his  face, 
And  bid  his  ears  a  little  while  be  deaf, 
Till  I  have  told  this  slander  of  his  blood, 
How  God  and  good  men,  hate  so  foul  a  liar." 


MEASURE  FOR  MEASURE.  47 

Sec.  24.    Prostitution  before  the  law. — 

"Escal.     How  would  you  live,  Pompey?  by  being  a  bawd? 

What  do  you  think  of  the  trade,  Pompey?  is  it  a 

lawful  trade? 
Clo.     If  the  law  would  allow  it,  sir. 
Escal.     But  the  law  will  not  allow  it,  Pompey ;  nor  it  shall 

not  be  allowed  in  Vienna. 
Clo.     Does  your  worship  mean  to  geld  and  spay  all  the 

youth  in  the  city? 
Escal.     No,  Pompey. 
Clo.     Truly,  sir,  in  my  poor  opinion,  they  will  to't  then : 

if  your  worship  will  take  order  for  the  drabs  and 

the  knaves,  you  need  not  to  fear  the  bawds. 


Prince  Henry  is  quoted  as  saying  to  the  Hostess,  in  1'  Henry 
IV:  "P.  Hen.  Thou-sayest  true,  hostess;  and  he  slanders  thee 
most  grossly."     (Act  III,  Scene  III.) 

The  wicked  Margaret  is  made  to  say,  in  defense  of  Suffolk, 
when  charged  with  Gloster's  death,  in  2'  Henry  VI:  "Q.  Mar. 
.  .  It  may  be  judg'd,  I  made  the  duke  away:  So  shall  my 
name  with  slanders  tongue  he  wounded,  And  princes  courts  be 
filFd  with  my  reproach."     (Act  III,   Scene  II.) 

Suffolk  thus  replies  to  his  accusers,  in  2'  Henry  VI:  "Sufi. 
I  wear  no  knife,  to  slaughter  sleeping  men;  but  here's  a  venge- 
ful sword,  rusted  with  ease,  That  shall  be  scoured  in  his  ran- 
courous  heart,  That  slanders  me  with  murder's  crimson  badge." 
(Act  III,  Scene  II.) 

And  Warwick,  suggests  the  proprieties  of  the  situation  to 
Queen  Margaret  in  her  defense  of  Suffolk,  as  follows:  "War. 
Madam,  be  still;  with  reverence,  may  I  say;  For  every  word,  you 
speak  in  his  behalf,  Is  slander  to  your  royal  dignity."  (2' 
Henry  VI,  Act  III,  Scene  II.) 

Excusing  himself  for  his  attempt  to  murder  Margaret,  Rich- 
ard III,  explains  to  Lady  Anne:  "Glo.  I  was  provoked  by  her 
sland'rous  tongue,  That  laid  their  guilt  upon  my  guiltless  shoul- 
ders."    (Richard  III,  Act  I,  Scene  II.) 

The  king  refers  to  slander  thus,  in  Hamlet:  ".  .  haply, 
slander,  whose  whisper  o'er  the  world's  diameter,  As  level  as  the 
cannon  to  his  blank,  Transports  his  poison'd  shot — may  miss  our 
name,  and  hit  the  woundless  air."     (Act  IV,  Scene  I.) 

And  Othello  tells  Iago,  after  he  has  aroused  his  jealousy  of 
his  wife:  "If  thou  dost  slander  her  and  torture  me,  Never  pray 
more:   abandon  all  remorse."     (Act  III,  Scene  III.) 


48  THE  LAW  IN  SHAKESPEARE. 

Escal.  There  are  pretty  orders  beginning,  I  can  tell  you : 
it  is  but  heading  and  hanging. 

Clo.  If  you  head  and  hang  all  that  offend  that  way  but 
for  ten  years  together,  you'll  be  glad  to  give  out  a 
commission  for  more  heads.  If  this  law  hold  in 
Vienna  ten  years,  I'll  rent  the  fairest  house  in  it, 
after  three  pence  a  day :  If  you  live  to  see  this  come 
to  pass,  say  Pompey  told  you  so."1 

Keeping  a  bawdy  house  was  an  offense  both  at  common 
law  and  by  statute.  At  common  law,  the  offense  was 
indictable  as  a  common  nuisance  and  it  clearly  involves 
moral  turpitude.2  The  reasoning  of  the  Clown,  in  de- 
fense of  the  practice,  because  of  the  prevalency  of  the 
offense,  of  course  is  not  sound,  for  the  same  argument 
might  be  used  to  defend  stealing  or  any  other  crime,  if 
prevalent. 

Sec.  25.    Sentence. — 

"Prov.     Is  it  your  will  Claudio  shall  die  tomorrow? 
Ang.     Did  I  not  tell  thee,  yea?    Had'st  thou  not  order? 

Why  dost  thou  ask  again? 
Prov.     Lest  I  might  be  too  rash: 

Under  your  good  correction,  I  have  seen, 

When,  after  execution,  judgment  hath 

Repented  o'er  his  doom."- 

Execution,  in  criminal  law,  is  putting  a  convict  to 
death,  agreeably  to  law,  in  pursuance  of  a  sentence  of  the 
court.4  After  the  sentence  of  the  law  is  put  in  force,  by 
an  execution,  of  course  it  would  be  too  late  to  correct  any 
mistake,  hence  the  suggestion  to  make  any  corrections 
before  execution  performed. 

1  Measure  for  Measure,  Act  II,  Scene  I. 

2  5  M.  &  W.  Exch.  249. 

»  Measure  for  Measure,  Act  II,  Scene  II. 
*  4    Bl.    Comm.    403;    3    Bl.    Comm.    412. 

In  another  play,  the  following  sentence  is  pronounced:  "King. 
Sir,  I  will  pronounce  your  sentence;  You  shall  fast  a  week  with 
bran  and  water."     (Love's  Labour's  Lost,  Act  I,  Scene  I.) 


MEASURE  FOR  MEASURE.  49 

Sec.  26.    Plea  for  pardon. — 

"Ang.     He's  sentenced;  'tis  too  late. 

Isab.     Too  late?     why,  no;  I,  that  do  speak  a  word, 
May  call  it  back  again:  Well  believe  this, 
No  ceremony  that  to  great  ones  'longs, 
Not  the  king 's  crown,  nor  the  deputed  sword, 
The  marshal's  truncheon,  nor  the  judge's  robe, 
Become  them  with  one-half  so  good  a  grace, 
As  mercy  does.     If  he  had  been  as  you, 
And  you  as  he,  you  would  have  slipt  like  him; 
But  he,  like  you,  would  not  have  been  so  stern. 

Ang.     Your  brother  is  a  forfeit  of  the  law, 
And  you  but  waste  your  words. 

Speaking  of  Bolingbroke,  King  Richard  II,  said: 
"K.  Rich.    O  God:   O  God: 

That  e're  this  tongue  of  mine, 
That  laid  the  sentence  of  dread  banishmeat 
On  yon  proud  man,  should  take  it  off  again 
With  words  of  sooth."  (Act  III,   Scene  III.) 

After  his  exile,  Norfolk  said  to  King  Richard  II: 
"Nor.    A  heavy  sentence,  my  most  sovereign  liege, 
And  all  unlooked  for  from  your  highness  mouth." 

(Act  I,  Scene  III.) 
The  Chief  Justice  explains  to  Henry  V,  how  he  had  enforced 
the  law,  during  his  father's  reign,  and  then  concludes: 
"Ch.  Jus.    .    .    .    After  this  cold  considerance,   sentence  me." 

(2'  Heniy  IV,  Act  V,  Scene  II.) 
King  Henry  V  said  to  Sir  Thomas  Grey,  after  discovery  of 
his  treason: 

"K.  Hen.    God  quit  you,  in  his  mercy.    Hear  your  sentence." 

(Act  II,  Scene  II.) 
Brabantio,  on  the  loss  of  his  daughter  to  the  Moor,  Othello, 
under  the  Duke's  decision,  said: 

"He  bears  the  sentence  well  that  nothing  bears, 
But  the  free  comfort  which  from  thence  he  hears: 
But  he  bears  both  the  sentence  and  the  sorrow, 
That,  to  pay  grief,  must  of  poor  patience  borrow." 

(Act  I,  Scene  III.) 
Tarquin  lulls  his  conscience  to  rest  with  the  philosophy  that 
"Who  fears  a  sentence  or  an  old  man's  saw, 
Shall  by  a  painted  cloth  be  kept  in  awe." 

(Rape  of  Lucrece,  244,  245.) 


50  THE  LAW  IN  SHAKESPEARE. 

Isab.     Alas,  Alas: 

Why,  all  the  souls  that  were,  were  forfeit  once: 
And  he  that  might  the  vantage  best  have  took, 
Found  out  the  remedy:    How  would  you  be, 
If  he,  which  is  the  top  of  judgment,  should 
But  judge  you  as  you  are?    O,  think  on  that; 
And  mercy  then  will  breath  within  your  lips, 
Like  man  new  made. 

Ang.     Be  you  content,  fair  maid: 

It  is  the  law,  not  I,  condemns  your  brother: 

Were  he  my  kinsman,  brother  or  my  son, 

It  should  be  thus  with  him ; — He  must  die  to-morrow. 

Isab.  To-morrow?  0,  that's  sudden;  Spare  him,  spare  him. 
He's  not  prepared  for  death:  Even  for  our  kitchens, 
We  kill  the  fowl  of  season ;  shall  we  serve  heaven 
With  less  respect  than  we  do  minister 
To  our  gross  selves?  Good,  good,  my  lord,bethink  you? 
Who  is  it  that  hath  died  for  this  offense? 
There's  many  have  committed  it. 

Ang.     The  law  hath  not  been  dead,  though  it  hath  slept: 
Those  many  had  not  dared  to  do  that  evil, 
If  the  first  man  that  did  the  edict  infringe, 
Had  answered  for  his  deed:  now,  'tis  awake. 


ha  b.     Yet  show  some  pity. 

Ang.     I  show  it  most  of  all,  when  I  show  justice; 
For  then  I  pity  those  I  do  not  know, 
Which  a  dismiss'd  offense  would  after  gall: 
And  do  him  right  that,  answering  one  foul  wrong, 
Lives  not  to  act  another.     Be  satisfied; 
Your  brother  dies  to-morrow :  be  content. 

Isab.     So  you  must  be  the  first,  that  gives  this  sentence? 
And  he,  that  suffers:  0,  it  is  excellent 
To  have  a  giant's  strength ;  but  it  is  tyrannous 
To  use  it  like  a  giant. 
Could  great  men  thunder, 

As  Jove  himself  does,  Jove  would  ne'er  be  quiet, 
For  every  pelting,  petty  officer, 
Would  use  his  heaven  for  thunder ;  nothing  but 

thunder. — 
Merciful  heaven: 

Thou  rather,  with  thy  sharp  and  sulphurous  bolt, 
Split'st  the  unwedgeable  and  gnarled  oak, 
Than  the  soft  myrtle : — 0,  but  man,  proud  man ; 
Drest  in  a  little  brief  authority; 


MEASURE  FOR  MEASURE.  51 

Most  ignorant  of  what  he  's  most  assured, 
His  glassy  essence, — like  an  angry  ape, 
Plays  such  fantastic  tricks  before  high  heaven, 
As  make  the  angels  weep :  who,  with  our  spleens, 
Would  all  themselves  laugh  mortal. 

We  cannot  weigh  our  brother,  with  ourself : 
Great  men  may  jest  with  saints:  'tis  wit  in  them; 
But,  in  less,  foul  profanation. 

Aug.     Why  do  you  put  these  sayings  upon  me? 

I  sab.     Because  authority,  though  it  err  like  others, 
Hath  yet  a  kind  of  medicine  in  itself, 
That  skims  the  vice  o'  the  top ;  Go  to  your  bosom ; 
Knock  there ;  and  ask  your  heart,  what  it  doth  know 
That's  like  my  brother's  fault:  if  it  confess 
A  natural  guiltiness,  such  as  is  his, 
Let  it  not  sound  a  thought  upon  your  tongue 
Against  my  brother's  life."1 

This  colloquy  denotes  a  very  accurate  knowledge  of  the 
underlying  principle  of  the  pardoning  power  and  that  it 
is  essentially  an  act  of  grace,  proceeding  from  the  power 
intrusted  with  the  execution  of  the  laws,  which  exempts 
the  particular  individual  receiving  the  pardon  from  the 
punishment  the  law  prescribes  for  the  crime  committed.2 
As  all  pardons  are  necessarily  in  derogation  of  law,  if  the 
pardon  is  equitable,  the  law  is  bad,  since  good  laws  should 
be  rigidly  enforced  and  violations  thereof  ought  not  to  be 
condoned  or  excused.  But  back  of  this,  as  human  na- 
ture is  frail,  at  best,  the  pardoning  power  is  recognized, 
in  order  to  prevent  injustice,  or  to  show  mercy,  in  given 
cases,  when  to  permit  the  law  to  be  enforced  would  entail 
injustice.3  That  the  Poet  had  a  clear  and  accurate  un- 
derstanding of  this  reason  for  the  lodgment  of  the  power 
invoked  by  Isabella  cannot  be  doubted,  after  a  perusal  of 
this  play. 

1  Measure  for  Measure,  Act  II,  Scene  II. 

2  7    Pet.   160. 
•Bouvier's  Law  Diet. 

Referring  to  the  pardoning  power,  as  an  act  of  clemency,  the 
Poet,  in  Comedy  of  Errors  (Aet  I,  Seeae  I)  makes  the  Duke  say: 


52  THE  LAW  IN  SHAKESPEARE. 

Sec.  27.     Punishment  for  seduction  by  Venetian  law. — 

"Duke.     .     .     Your   partner,    as   I   hear,    must   die  to- 
morrow, 
And  I  am  going  with  instruction  to  him. 
Grace  go  with  you.     Benedicite. 


"Duke.    But,  though  thou  art  adjudged  to  the  death, 

And   passed   sentence   may   not   be   recalled, 

But   to    our   honour's   great   disparagement, 

Yet  will  I  favor  thee  in  what  I  can." 
In  King  Richard  II,  the  Duchess  of  York,  pleading  for  the  life 
of  her  son,  to  Bolingbroke,  is  made  to  say: 
"DucK.     Nay,  do  not  say, — stand  up; 

But,  pardon,  first;  and  afterwards,  stand  up. 

And  if  I  were  thy  nurse,  thy  tongue  to  teach, 

Pardon — should  be  the  first  word  of  thy  speech. 

I  never  longed  to  hear  a  word  till  now; 

Say — pardon,  king;   let  pity  teach  thee  how; 

The  word  is  short,  but  not  so  short,  as  sweet; 

No  word  like  pardon,  for  king's  mouth's  so  meet." 

(Act  V,  Scene  III.) 
After  discovery  of  his  treason,  the  Earl  of  Cambridge,  said  to 
King  Henry  V:     "Gam.     .    .    God  be  thanked   for  prevention; 
which  I,  in  sufferance  heartily  will  rejoice,  beseeching  God  and 
you,  to  pardon  me."     (Act  II,  Scene  II.) 

In  replying  to  Stanley's  plea  for  pardon,  for  his  servant,  King 
Edward  said,  in  King  Richard  III:  "K.  Edw.  .  .  when  your 
carters,  or  your  waiting-vassals,  Have  done  a  drunken  slaughter, 
and  defac'd  The  precious  image  of  our  dear  Redeemer,  You 
straight  are  on  your  knees  for  pardon,  pardon;  And  I,  unjustly, 
too,  must  grant  it."     (Act  II,  Scene  I.) 

Replying  to  the  good  offices  of  the  King,  as  conveyed  by  Capu- 
cius,  on  her  death  bed,  Queen  Katherine  said,  in  King  Henry  VIII: 
"Q.  Kath.  O  my  good  lord,  that  comfort  comes  too  late;  'tis 
like  a  pardon  after  execution."     (Act  IV,  Scene  I.) 

In  his  death  struggle  Antony  said  to  Cleopatra:  "Ant.  .  . 
I  will  o'ertake  thee,  Cleopatra,  and  weep  for  my  pardon."  (Act 
IV,  Scene  XII.) 

Reflecting  upon  his  own  guilt  the  King  observes,  in  Hamlet: 
"King.  May  one  be  pardon'd  and  retain  the  offence?"  (Act  III, 
Scene   III.) 


MEASURE  FOR  MEASURE.      %  58 

Juliet.     Must  die  to-morrow:  O  injurious  law, 
That  respites  me  a  life  whose  very  comfort 
Is  still  a  dying  horror."1 

It  is  written  that  the  law  in  question,  as  presented  in  the 
old  tale,  from  which  this  play  is  taken,2  provided  that  the 
offender  "should  lose  his  head,  and  the  woman  offender 
should  ever  after  be  infamously  noted."3  It  will  thus  be 
seen  that  this  punishment  affords  but  little  consolation  to 
the  injured  party,  as  the  future  life  would  be  a  "com- 
fort," but  still  "a  dying  horror." 

Sec.  28.    The  severe  judge. — 

"Escal.  You  have  paid  the  heavens  your  function,  and 
the  prisoner  the  very  debt  of  your  calling.  I  have 
laboured  for  the  poor  gentleman,  to  the  extremest 
shore  of  my  modesty;  but  my  brother  justice  have 
I  found  so  severe,  that  he  hath  forced  me  to  tell  him, 
he  is  indeed — justice. 

Duke.  If  his  own  life  answers  the  straitness  of  his  pro- 
ceeding it  shall  become  him  well;  wherein,  if  he 
chance  to  fail,  he  hath  sentenced  himself."4 

"Justice"  was  a  title  given,  in  England,  to  the  judges  of 
the  common-law  courts,5  and  the  same  title  is  used  in  the 
United  States,  to  indicate  the  presiding  officers  of  such 
courts  in  the  various  State  and  Federal  tribunals.  It  is 
a  customary  form  to  refer  to  an  associate  justice  of  such 
courts  as  "my  brother  justice." 

"The  straitness  of  his  proceedings,"  refers  to  the 
details  of  the  mode  of  carrying  on  the  case  against 
Claudio.  "Proceeding"  at  common  law,  was  the  regular 
mode  of  carrying  on  a  lawsuit.6 


1  Measure  for  Measure,  Act  II,  Scene  III. 

a  Hecatommithi,  of  Giraldi  Cinthio,  published  in  Venice,  in  1566. 
■  Rolfe's  Measure  for  Measure,  p.  174,  notes. 
4  Measure  for  Measure,  Act  III,  Scene  II. 

5Anc.  Laws  and  Inst,  of  Eng.;   Coke,  Litt.  71b;   Leges  Hen.  I, 
Sees.  24,  63. 
eBouvier,  Law  Diet. 


54  THE  LAW  IN  SHAKESPEARE. 

Sec.  29.    Common  law  marriage  contract. — 

"Duke.    Nor,  gentle  daughter,  fear  you  not  at  all: 
He  is  your  husband,  on  a  pre-contract: 
To  bring  you  thus  together,  'tis  no  sin ; 
Sith  that  the  justice  of  your  title  to  him 
Doth  flourish  the  deceit.     Come,  let  us  go; 
Our  corn's  to  reap,  for  yet  our  tithe's  to  sow."1 

This  verse  treats  the  party  to  a  "pre-contract"  of  mar- 
riage, after  cohabitation  as  the  lawful  wife  of  the  other 
contracting  party  and  this  was  strictly  in  accordance  with 
the  common  law.  At  common  law  no  form  of  contract, 
nor  was  any  ceremony  essential  to  constitute  the  relation, 
but  mutual  assent  to  the  relation  of  husband  and  wife 
followed  with  cohabitation,  in  reliance  thereon,  was  suf- 
ficient to  make  a  man  and  woman  husband  and  wife.2 
But  it  may  be  doubted  if  a  cohabitation,  procured  by  false 
personation  of  another,  would  be  such  consummation  of 
the  contract  as  to  consummate  the  relation,3  in  the  ab- 
sence of  a  decree  by  such  authority  as  backed  up  this 
intrigue  or  the  use  of  such  arbitrary  force  as  made  the 
recognition  of  the  contract  afterwards  certain. 

•The  use  of  the  term,  "pre-contract,"  as  remarked  by  Mr. 
Davis,4  "shows"  that  the  distinction  between  marriage 
per  verba  de  presenti,  and  that  per  verba  de  futuro  "was 
plainly  drawn  in  Shakespeare's  mind." 

The  following  occurs  in  1'  Henry  IV,  between  Falstaff  and 
Prince  Henry:  "Fal.  Shall  I?  O  rare:  By  the  lord  I'll  be  a 
brave  judge.  P.  Hen.  Thou  judgest  false  already;  I  mean,  thou 
shalt  have  the  hanging  of  thieves  and  so  become  a  rare  hang- 
man."    (Act  I,  Scene  II.) 

Speaking  of  the  Justice's  duties,  among  those  of  man,  whom 
heaven  hath  divided  into  various  functions,  the  Archbishop  of 
Canterbury,  in  Henry  V,  said:  "Cant.  The  sad  ey'd  justice,  with 
his  surly  hum,  delivering  o'er  to  executors  pale,  the  lazy  yawning 
drone."     (Act  I,  Scene  II.) 

1  Measure  for  Measure,  Act  IV,  Scene  I. 

2  2  Roper,   Husb.   &  Wife,  445,  475. 
MO  Clark  &  F.  Hou.  L.  534. 

*  Davis,  Law  in  Shakespeare,  70. 


MEASURE  FOR  MEASURE.  55 

Sec.  30.    Plea  for  justice. — 

"Isab.     Justice,  O,  royal  Duke;  Vail  your  regard 
Upon  a  wrong'd,  I'd  fain  have  said,  a  maid; 
0  worthy  prince,  dishonor  not  your  eye 
By  throwing  it  on  any  other  object, 
Till  you  have  heard  me  in  my  true  complaint, 
And  give  me  justice,  justice,  justice,  justice."1 

Mr.  Webster  once  said :  " Justice,  sir,  is  the  great  inter- 
est of  man  on  earth."2  To  insure  justice,  is  one  of  the 
main  objects  of  all  social  compacts  and  to  come  nearer  the 
standards  by  which  it  may  be  realized,  is  the  pride  of  all 
civilizations.  Institutions  for  the  administration  of  jus- 
tice have  now  reached  the  greatest  perfection  that  the 
world  has  ever  seen,  and  the  broad,  beneficent  idea  of 
"equal  and  exact  justice,  to  all  men,  of  whatever  state  or 
persuasion,  religious  or  political,"  proclaimed  by  one  of 
the  greatest  of  the  architects  of  our  own  free  government, 
as  a  proper  gauge  for  the  rights  of  man,  has  become  the 
guiding  star  by  all  liberty-loving  people  of  the  world. 
Justice  is  defined  as  the  "Constant  and  perpetual  will  to 
render  unto  every  man  his  due."3  Commutative  justice 
is  the  virtue  of  rendering  unto  every  man  that  which  be- 
longs to  him,  as  nearly  as  may  be;  to  make  an  equality 
between  the  parties,  to  the  end  that  no  one  may  be  the 
gainer  by  another's  loss.4  Distributive  Justice  consists  in 
distributing  rewards  and  punishments  to  each  one,  accord- 
ing to  his  merits,  so  that  neither  equal  persons  have  un- 
equal things,  nor  unequal  persons  things  that  are  equal.5 
Justice  is  also  said  to  be  exterior  and  interior,  the  former 
being  the  object  of  jurisprudence  and  the  latter  the  object 
of  morality  alone.6  But  in  the  broadest  sense,  it  is  a 
simple  rule  of  right,  with  the  object  of  giving  every  one 

1  Measure  for  Measure,  Act  V,  Scene  I. 

2  See,  Judiciary,  &c,  Proc.  24th  Meeting  Mo.  Bar  Ass'n. 

3  Justinian,  Inst    b.  1,  tit.  1;   Coke,  2  Inst.  56. 

4  Toullier,  Droit,  Civ.  Fr.  tit.  prel.  n.  5. 
*  Ante,  idem. 

•Droit,  Civ.  Fr.  tit.  prel.  n.  6,  7. 


56  THE  LAW  IN  SHAKESPEARE. 

his  own.  Isabella,  here,  sought  her  own  and  in  so  seek- 
ing sought  but  simple  justice.  Her  plea  therefor  is  cer- 
tainly a  touching  appeal,  calculated  to  move  the  hardest 
heart  in  favor  of  the  virtue  craved. 

Sec.  31.    The  equality  of  justice. — 
"Duke.     The  very  mercy  of  the  law  cries  out, 
Most  audible,  even  from  his  proper  tongue, 
An  Angeh  for  Claudio,  death  for  death, 
Haste  still  pays  haste,  and  leisure  answers  leisure; 
Like  doth  quit  like,  and  Measure  still  for  Measure. 
Then,  Angelo,  thy  fault's  thus  manifested: 
Which,  though  thou  would'st  deny,  denies  thee  van- 
tage."1 

As  distributive  justice  contemplates  the  distribution  of 
rewards  and  punishments  to  each  person,  according  to  his 

In  Merchant  of  Venice  (Act  II,  Scene  VIII)  the  Jew  is  ridi- 
culed, for  seeking  justice,  as  follows: 
"Solan.    I  never  heard  a  passion  so  confus'd, 
So  strange,   outrageous  and   so  variable, 
As  the  dog  Jew  did  utter  in  the  streets: 
My  daughter: — 0  my  ducats: — 0  my  daughter: 
Fled  with  a  Christian? — 0  my  Christian  ducats: 
Justice:  the  law:  my  ducats  and  my  daughter: 
A  sealed  bag,  two  sealed  bags  of  ducats, 
Of  double  ducats,  stoVn  from  me  by  my  daughter: 
And  jewels;  two  stones,  two  rich  and  precious  stones, 
StoVn  by  my  daughter: — Justice:  find  the  girl." 
Antipholus  prays   for  justice   from   the   Duke,   in   Comedy   of 
Errors,  as  follows: 

"Ant.    Justice,   most   gracious   Duke,   oh,   grant  me   justice: 
Even  for  the  service  that  long  since  I  did  thee, 
When  I  bestrid  thee  in  the  wars,  and  took 
Deep  scars  to  save  thy  life;  even  for  the  blood 
That  then  I  lost  for  thee,  now  grant  me  justice." 

(Act  V,  Scene  I.) 
Lady  Capulet  begs  for  justice,  in  asking  for  Romeo's  death, 
in  Romeo  and  Juliet,  for  the  killing  of  Tybalt,  as  follows: 
"La.  Cap.    I  beg  for  justice,  which  thou,  prince,  must  give; 
Romeo  slew  Tybalt,  Romeo  must  not  live."  (Act  III,  Scene. 

1  Measure  for  Measure,  Act  V,  Scene  I. 


MEASURE  FOR  MEASURE.  57 

own  deserts,  so  that  persons  similarly  situated  shall  have 
substantially  the  same  rewards  or  punishment,  for  the 
violated  right,  or  the  wrong  inflicted,1  it  is  apparent  that 
this  was  understood  by  the  Poet,  and  in  denying  Angelo 
any  "vantage"  from  his  position,  for  the  offense  he  had 
committed,  the  Duke  but  meted  out  equal  and  exact  jus- 
tice to  him,  accordingly  as  he  had  dealt  with  Claudio. 

Sec.  32.    The  law  a  gazing-stock,  when  not  enforced. — 

"Duke.     My  business  in  this  state  made  me  a  looker-on, 
here  in  Vienna, 
Where  I  have  seen  corruption  boil  and  bubble, 
Till  it  o'errun  the  stew:  laws,  for  all  faults; 
But  faults  so  countenanced,  that  the  strong  statutes 
Stand  like  the  forfeit  in  a  barber's  shop, 
As  much  in  mock  as  mark.2 

The  thought  here  expressed  is  that  the  law  becomes  a 
mere  gazing-stock,  when  not  enforced.  "Countenanced," 
is  clearly  used  in  the  sense  of  approved,  favored  or  en- 
couraged ;  looked  upon  with  favor  or  condoned.  In  other 
words,  violations  of  the  law  had  been  so  condoned  that 
the  law,  itself,  had  become  a  mere  mockery.  It  is  a  fa- 
miliar form  of  legal  or  judicial  expression,  as  to  laws 
which  have  become  a  dead  letter,  by  lack  of  enforcement.3 


And  again,  in  Love's  Labour's  Lost,  Biron  remarked:  "And 
justice  always  whirls  in  equal  measure."     (Act  IV,  Scene  III.) 

In  Winter's  Tale,  before  the  trial  of  the  queen,  Hermione, 
Leontes  said:  "Let  us  be  cleared  of  being  tyrannous,  since  we 
so  openly  proceed  in  justice;  which  shall  have  due  course,  even 
to  the  guilt,  or  the  purgation."     (Act  III,  Scene  II.) 

Warwick,  in  3'  Henry  VI,  is  made  to  say:  "War.  .  . 
Measure  for  measure,  must  be  answered."     (Act  II,  Scene  VI.) 

1Toullier,  Droit,  Civ.  Fr.  tit.  prel.  n.  5. 

*  Measure  for  Measure,  Act  V,  Scene  I. 

3  In  a  recent  decision,  by  the  Supreme  Court  of  the  State  of  Mis- 
souri, the  Court  said:  "It  ought  not  be  expected  that  we  would 
so  hold  as  to  encourage  such  a  notion  .  .  .  and  thereby 
make  a  gazing-stock  of  the  law."     200  Mo.,  p.  400. 


58  THE  LAW  IN  SHAKESPEARE. 

Sec.  33.    Confession  of  guilt. — 

"Ang.     0,  my  dread  lord, 

I  should  be  guiltier  than  my  own  guiltiness, 
To  think  I  can  be  undiscernible, 
When  I  perceive  your  grace,  like  power  divine, 
Hath  looked  upon  my  passes:  Then,  good  prince, 
No  longer  session  hold  upon  my  shame, 
But  let  my  trial  be  my  own  confession; 
Immediate  sentence  then,  and  'sequent  death, 
Is  all  the  grace  I  beg."1 

As  a  voluntary  confession  of  his  guilt,  this  would  be 
evidence2  against  Angelo,  by  which  his  conviction  would 
follow,  in  a  trial.  But  as  the  confession  is  but  an  extra- 
judicial confession,  as  distinguished  from  a  judicial  con- 
fession,3 the  Poet  does  not  present  it  as  more  than  evi- 
dence of  his  guilt,  which  might  be  offered,  on  a  trial, 
but  the  plea  is  for  an  end  of  the  session,  at  the  trial,  by 
a  judicial  confession,  which  would  then  necessarily  put  an 
end  to  the  proceeding — when  made  without  fear  or  hope 
of  reward4 — through  the  waiver  of  a  trial ;  a  plea  of  guilt 
and  a  subsequent  immediate  sentence. 


And  that  other  unnatural  edicts  would  prove  a  similar  gazing- 
stock,  because  of  their  non-enforcement,  the  Poet  makes  another 
player  say,  in  Love's  Labour's  Lost: 
"Biron.    I'll  lay  my  head  to  any  good  man's  hat, 
These  oaths  and  laws  will  prove  an  idle  scorn." 

(Act  I,   Scene  I.) 

Clifford  said,  in  3'  Henry  VI:  "Cliff.  .  .  For  what  doth 
cherish  weeds,  but  gentle  air,  And  what  makes  robbers  bold,  but 
too  much  lenity?"     (Act  II,  Scene  VI.) 

1  Measure  for  Measure,  Act  V,  Scene  I. 

al  Mood.  Cr.  Cas.  27,  452. 

al  Lew.  Cr.  Cas.  46;   4  Carr.  &  P.  567;   2  Russell,  Crimes   (3d 

ed.),  876-878. 

4  If  a  confession  is  exacted  by  inducement,  threats,  promise  or 
hope  of  reward,  in  general,  it  is  not  admissible  against  a  prisoner. 
1  Mood.  Cr.  Cas.  465;  4  Carr.  &  P.  570. 


MEASURE  FOR  MEASURE.  59 

Sec.  34.    Loyalty  of  attorney. — 

"Duke.     Come  hither,  Isabel: 

Your  friar  is  now  your  prince:  As  I  was  then 
Advertising,  and  holy  to  your  business, 
Not  changing  heart  with  habit,  I  am  still 
Attorney'd  at  your  service."1 

The  ethical  side  of  an  attorney's  duty  toward  his  client 
is  here  touched  on,  for  to  be  "holy"  to  the  client's  "busi- 
ness"; "not  changing  heart  with  habit,"  but  to  be  loyal 
to  the  person  engaged,  is  but  the  primal  duty  of  one  "at- 
torney'd" in  another's  service. 

The  business  of  attorneys  is  to  carry  on  the  practical 
and  formal  parts  of  suits.2  The  principal  duties  of  at- 
torneys are,  to  be  true  to  the  court  and  their  clients;  to 
manage  the  business  of  their  clients  with  care,  skill  and 
integrity;  to  keep  their  clients  informed  as  to  the  state  of 
their  business  and  to  keep  the  secrets  confided  to  them, 
as  such.3  That  the  Poet  recognized  these  several  duties 
as  among  the  attorney's  promised  service,  is  apparent  from 
this  verse. 


Confession  is  referred  to  in  Love's  Labour's  Lost,  as  follows: 
"King.    Teach  us,  sweet  madam,  for  our  rude  transgression 

Some  fair  excuse. 
Prin.    The  fairest  is  confession. 

Were  you  not  here,  even  now,  disguised?" 

(Act  V,  Scene  II.) 

In  Macbeth,  Malcolm  is  made  to  say:  "My  liege,  they  are  not 
yet  come  back.  But  I  have  spoke  with  one  that  saw  him  die; 
who  did  report  that  very  frankly  he  confess'd  his  treasons." 
(Macbeth,  Act  I,  Scene  I.) 

After  discovery  of  his  treason,  the  earl  of  Cambridge,  said  to 
Henry  V:  "Cam.  I  do  confess  my  fault;  and  do  submit  me  to 
your  highness  mercy."     (Act  II,  Scene  II.) 

Cardinal  Beaufort,  exclaims,  concerning  the  murder  of  Gloster, 
in  2'  Henry  VI:  "Car.  .  .  O,  torture  me  no  more,  I  will 
confess."     (Act  III,  Scene  III.) 

1  Measure  for  Measure,  Act  V,  Scene  I. 

21  Kent's  Comm.  307. 

•4  Burr.  2061;   1  Barnew.  &  Aid.  202. 


60  THE  LAW  IN  SHAKESPEARE. 

Sec.  35.    Intent,  distinguished  from  wrongful  act.—. 

'I sab.     My  brother  had  but  justice, 

In  that  he  did  the  thing  for  which  he  died: 

For  Angelo, 

His  act  did  not  o'ertake  his  bad  intent, 

And  must  be  buried  but  as  an  intent 

That  perished  by  the  way :  thoughts  are  no  subjects, 

Intents  but  merely  thoughts."1 

Here,  the  intent  to  commit  an  offense  is  clearly  dis- 
tinguished from  the  crime,  or  actual  accomplishment  of 
the  act.  Claudio  "did  the  thing  for  which  he  died;" 
but  with  Angelo,  "His  act  did  not  o'ertake  his  bad  intent, 
and  must  be  buried  but  as  an  intent,  that  perished  by 
the  way."  In  defining  "intents"  as  "merely  thoughts," 
the  legal  definition  of  a  criminal  intent  it  not  far  digressed 
from,  as  criminal  intent  is  said  to  be  "a  design,  resolve, 
or  determination  of  the  mind."2  But,  of  course,  from  a 
strictly  legal  standpoint,  the  conclusion  of  the  pleader  is 
wrong,  that  because  Angelo  did  not  accomplish  the  crime 
intended,  he  was  guilty  of  no  offense,  for  as  a  matter  of 
fact,  when  a  man  intending  one  wrong  fails,  and  acci- 
dently  commits  another,  he  will,  except  when  the  par- 
ticular intent  is  a  substantive  part  of  the  crime,  be  held  to 
have  intended  the  act  he  did  commit.3  Nor  is  it  any 
reply  to  this  suggestion  that  Angelo  was  guilty  of  no 
offense,  in  thus  meeting  his  own  wife,  for  as  he  had 
refused  to  so  recognize  her,  his  act  was  equally  as  guilty 
as  Claudio's,  for  the  latter  did  recognize  Juliet  as  his 
common  law  wife. 


1  Measure  for  Measure,  Act  V,  Scene  I. 
2Bouvier,  Law  Diet. 

•Roscoe,  Crim.  Evid.  272;  Eden,  Pen.  Law  (3d  ed.),  229;  1  Carr. 
&  K.  746. 

In  Henry  V,  Williams  explains  to  the  king:  "Will.  All 
offenses,  my  liege,  come  from  the  heart:  never  came  any  from 
mine,  that  might  offend  your  majesty."     (Act  IV,  Scene  VIII.) 

Speaking  of  the  intent  of  Gloster,  although  not  accomplished, 
Suffolk  said,  in  2'  Henry  VI: 


MEASURE  FOR  MEASURE.  61 

Sec.  36.    Breach  of  promise. — 

"Duke.     For  this  newly  married  man,  approaching  here, 
Whose  salt  imagination  yet  hath  wronged 
Your  well  defended  honor,   you  must  pardon,   for 

Mariana's  sake; 
But  as  he  adjudged  your  brother  (being  criminal  in 

double  violation,  of  sacred  chastity  and  of  promise 

breach) , 
Thereon  dependant  for  your  brother's  life."1 

Claudio  had  been  guilty  of  not  only  a  breach  of  prom- 
ise— which  would  have  given,  at  common  law,  a  civil 
action — but  also  of  seduction,  as  well,  under  promise  of 
marriage,  as  adjudged  by  Angelo.  The  "violation  of 
sacred  chastity"  is  nothing  more  nor  less  than  the  com- 
mon law  offense  of  seduction,  which  was  defined  as  "the 
act  of  a  man  in  inducing  a  woman  to  commit  unlawful 

"Suff.    And,  were't  not  madness,  then, 

To  make  the  fox  surveyor  of  the  fold? 
Who  being  accus'd  a  crafty  murderer, 
His  guilt  should  he  but  idly  posted  over, 
Because  his  purpose  is  not  executed." 

(Act  III,  Scene  I.) 
Illustrating  the  criminal  intent  of  the  deliberate  murderer,  tb© 
Poet  makes  Richard  III  say,  while  contemplating  the  murder  of 
his  brother:  "Glo.  .  .  if  I  fail  not,  in  my  deep  intent, 
Clarence  hath  not  another  day  to  live."  (King  Richard  III,  Act 
I,  Scene  I.) 

The  Poet  asks  the  Painter,  to  tell  Timon  of  Athens:  "Poet. 
I  must  say  him  so  too;  tell  him  of  an  intent  that's  coming 
toward  him."     (Act  V,  Scene  I.) 

The  King  is  made  to  say,  in  Hamlet,  reflecting  on  his  guilt, 
in  the  murder  of  his  brother:     "King.    .     .    My  stronger  guilt 
defeats  my  strong  intent;   And,  like  a  man  to  double  business 
bound,   I   stand   in   pause  where   I   shall   first   begin,   And   both 
neglect."     (Act  III,  Scene  III.) 
Tarquin  is  made  to  say,  in  The  Rape  of  Lucrece: 
"If  Collatinus  dream  of  my  intent, 
Will  he  not  wake  and  in  a  desperate  rage 
Post  hither,  this  vile  purpose  to  prevent?"  (218,  220.) 

1  Measure  for  Measure,  Act  V,  Scene  I. 


62  THE  LAW  IN  SHAKESPEARE. 

sexual  intercourse  with  him."1  An  action  for  breach  of 
promise  is  a  suit  for  damages  for  the  violation  of  a  "con- 
tract mutually  entered  into  by  a  man  and  woman  that 
they  will  marry  each  other."2  While  a  breach  of  promise 
suit  is  always  a  civil  suit  for  damages  for  violation  of  the 
contract  of  marriage,  when  such  breach  is  accompanied 
by  a  seduction,  the  violator  of  the  promise  is  subject  to 
a  criminal  prosecution,  in  most  countries,  as  for  a  viola- 
tion of  the  criminal  laws.3 

Sec.  37.    Punishment  by  marriage  to  prostitute. — 

"Duke.     ,    .     t      Proclaim  it,  provost,  round  about  the 
city, 
If  any  woman's  wrong'd  by  this  lewd  fellow — 
As  I  have  heard  him  swear  himself  there's  one 
Whom  he  begot  with  child — let  her  appear, 
And  he  shall  marry  her;  the  nuptial  finish'd, 
Let  him  be  whipped  and  hang'd. 

Lucio.  I  beseech  your  highness  do  not  marry  me  to  a 
whore.  Your  highness  said,  even  now,  I  made  you 
a  duke;  good  my  lord,  do  not  recompense  me  in 
making  me  a  cuckold. 

Duke.     Upon  mine  honor,  thou  shalt  marry  her. 
Thy  slanders  I  forgive  and  therewithal 
Remit  thy  other  forfeits. — Take  him  to  prison 
And  see  our  pleasure  herein  executed. 

Lucio.  Marrying  a  punk,  my  lord,  is  pressing  to  death, 
whipping  and  hanging."4 

This  is  no  doubt  a  reference  to  the  old  Italian  law,  in 
force  during  the  lifetime  of  the  Poet,  by  which  the  punish- 
ment assessed  against  a  criminal  of  the  nature  of  Lucio, 
by  the  compulsory  marriage  to  a  prostitute,  would  be 
assessed  in  lieu  of  other  penalty  for  his  crime.5     But  the 

JBouvier,  Law  Diet. 

2  Strange,  937;  Addison,  Con.  (4th  ed.),  676. 

•  This  is  made  a  crime  by  statutes  in  most  of  the  United  States, 
as  it  was  in  England.     1  Bishop,  Cr.  Proc.  1106. 

4  Measure  for  Measure,  Act  V,  Scene  I. 

6Fabio.  Gori's  ArcMvio  Storico,  etc.,  (Spoleto  Tip.  Bassani), 
vol.  Ill,  pp.  220,  221;  Rolfe's  Measure  for  Measure,  p.  219,  notes. 


MEASURE  FOR  MEASURE.  63 

Duke,  in  this  instance  does  not  assess  this  punishment,  in 
lieu  of  the  other  penalty  the  law  authorized,  but  after  the 
marriage  of  Lucio,  to  the  woman  he  had  wronged,  he  also 
contemplated  that  this  offender  should  be  whipped  and 
hanged.  Lucio's  reply  to  this  judgment  of  the  Duke, 
that  this  combined  the  punishment  assessed  against  those 
criminals  who  refused  to  plead,  by  pressing  them  to  death, 
known  as  peine  forte  et  dure,1  elsewhere  discussed,2  with 
the  other  punishments  assessed,  shows  how  much  he  ab- 
horred the  sentence  of  marrying  a  prostitute. 


^leta,  lib.  1.  c.  34,  sec.  33;  Brit.  C.  C.  4,  22. 

8  See  King  Richard  II;  Much  Ado  About  Nothing. 


CHAPTER  VI. 

"MUCH  ADO  ABOUT  NOTHING." 

Sec.  38.  Endowment. 

39.  Breach  of  the  Peace. 

40.  Punishment  by  pressing  to  death. 

41.  "Statutes  of  the  Streets." 

42.  Qualifications  of  Constable. 

43.  Duties  of  the  Nightwatch. 

44.  False  Imprisonment. 

45.  Preliminary  hearing. 

46.  Examination  before  Magistrate. 

47.  Householder. 

48.  Preliminary  Examination  for  Burglary. 

49.  Trial  by  Manly  Combat. 

50.  Count — Extra-Judicial  Confession  on. 

51.  False  Testimony. 
..52.  The  Scales  of  Justice. 

Sec.  38.    Endowment. — 

"Bene.  I  would  not  marry  her,  though  she  were  endowed 
with  all  that  Adam  had  left  him  before  he  trans- 
gressed."1 

A  person  is  said  to  be  "endowed,"  when  he  or  she  has 
been  provided  for  by  a  fixed  or  permanent  support  out  of 
property  or  a  certain  fund  or  revenue.2  The  term  applies 
peculiarly  to  a  settlement  made  for  a  wife,  by  which  she 
is  endowed  with  some  pecuniary  provision  for  her  sup- 
port.3 A  dowry  is  a  gift,  or  present  for  a  bride,  on 
espousal,4  and  is  sometimes  confounded  with  dower,  which 
is  the  gift  of  the  husband's  property  that  the  law  makes 
to  a  widow  on  his  death  for  the  support  of  the  widow  and 
her  children.5  Benedict's  statement  is  of  course  very  ex- 
travagant that  he  would  not  marry  Beatrice,  if  she  pos- 
sessed the  whole  world. 


1  Much  Ado  About  Nothing,  Act  II,  Scene  I. 

3Bouvier's  Law  Diet. 

8  4  Kent's  Comm.  65. 

4  Coke,  Litt,  31. 

•2  Bl.  Comm.  130;  4  Kent's  Comm.  35. 

(64) 


MUCH  ADO  ABOUT  NOTHING.  65 

Sec.  39.    Breach  of  the  peace. — 

"Leon.  If  he  do  fear  God,  he  must  necessarily  keep 
peace;  if  he  break  the  peace,  he  ought  to  enter  into 
a  quarrel  with  fear  and  trembling."1 

A  breach  of  the  peace  is  a  violation  of  public  order,  com- 
monly known  as  the  offense  of  disturbing  the  peace.2  The 
remedy  for  such  an  offense  is  by  indictment  and  the 
offender  may  be  held  to  bail,  for  his  good  behavior.3 


In  All's  Well  That  Ends  Well  (Act  IV,  Scene  IV)  Helena  is 
made  to  say:  "Hel.  Doubt  not,  but  Heaven  hath  brought  me 
up  to  be  your  daughter's  dower  as  it  hath  fated  her  to  be  my 
motive  and  helper  to  a  husband."  And  in  the  same  play,  it  is 
said:  "King.  If  thou  be'st  yet  a  fresh  uncropped  flower,  Choose 
thou  thy  husband  and  I'll  pay  thy  dower."     (Act  V,  Scene  III.) 

The  Chorus,  in  Henry  V,  advises  that  "the  king  doth  offer  him 
Katharine  his  daughter;  and  with  her,  to  dowry,  some  petty 
and  unprofitable  dukedoms."     (Act  III,  Scene  I.) 

In  the  agreement  between  Henry  VI  of  England  and  Charles, 
King  of  France,  for  the  marriage  of  the  former  with  Margaret, 
it  was  provided  that  she  should  be  "sent  over  of  the  king  of 
England's  own  proper  cost  and  charges  without  having  dowry." 
(Act  I,  Scene  I.) 

And  of  this  contract,  York  said:  "I  never  read  but  England's 
kings  have  had  large  sums  of  gold,  and  dowries  with  their  wives." 
(2'  Henry  VI,  Act  I,  Scene  I.) 

Lady  Grey  thus  replies  to  King  Edward's  suit,  in  3'  Henry 
VI:  "L.  Grey.  Why,  then,  mine  honesty  shall  be  my  dower;  For 
by  that  loss  I  will  not  purchase  them."     (Act  III,  Scene  II.) 

King  Richard  III  offers  his  hand  to  Queen  Elizabeth  for  her 
daughter,  his  niece,  as  follows:  "K.  Rich.  Even  all  I  have; 
ay,  and  myself  and  all,  Will  I  withal  endow  a  child  of  thine." 
(Act  IV,  Scene  IV.) 

Timon  asks  the  Old  Athenian,  as  to  his  daughter  for  Lucil- 
lius,  if  he  bring  her  proper  dowry,  in  Timon  of  Athens:  "Tim. 
How  shall  she  be  endow'd  if  she  be  mated  with  equal  husband?" 
(Act  I,  Scene  I.) 

1  Much  Ado  About  Nothing,  Act  II,  Scene  III. 

'Bishop,  Stat.  Crimes,  index. 

•  This  was  called  surety  of  the  peace.    1  Bishop's  Cr.  Proc.  264. 


66  THE  LAW  IN  SHAKESPEARE. 

As  breaches  of  the  peace  commonly  occur  by  blas- 
phemy, it  follows  that  one  who  fears  God,  "must  neces- 
sarily keep  peace."  And  the  fact  mentioned  that  one 
who  "breaks  the  peace,"  "ought  to  enter  into  a  quarrel 
with  fear  and  trembling,"  applies,  no  doubt,  to  the  legal 
attitude  such  a  person  would  occupy,  for  in  law,  one  who 
is  not  in  the  peace  himself  cannot  have  his  peace  dis- 
turbed.1 


The  Lord  Chief  Justice  commands  the  peace,  in  2'  Henry  IV 
(Act  II,  Scene  I),  as  follows:  "Ch.  Jus.  What's  the  matter? 
keep  the  peace  here,  ho!" 

In  his  soliloquy  before  the  battle  of  Agincourt,  King  Henry  V 
said:  "K.  Hen.  .  .  in  gross  brains,  little  wots,  what  watch 
the  king  keeps,  to  maintain  the  peace,  whose  hours  the  peasant 
best  advantage."     (Act  IV,  Scene  I.) 

The  Mayor  of  London  commanded  the  peace,  by  open  proclama- 
tion, in  1'  Henry  VI,  as  follows:  "May.  Nought  rests  for  me,  in 
this  tumultuous  strife.  But  to  make  op?n  proclamation: — Come, 
officer,  as  loud  as  e'er  thou  canst.  Off.  All  manner  of  men, 
assembled  here  in  arms  this  day,  against  God's  peace  and  the 
King's,  we  charge  and  command  you,  in  his  highness'  name,  to 
repair  to  your  several  dwelling-places;  and  not  to  wear,  handle, 
or  use  any  sword,  weapon,  or  dagger,  henceforward,  upon  pain 
of  death."     (Act  I,  Scene  III.) 

The  Mayor  of  London,  commanded  the  peace  in  the  disturb- 
ance between  the  duke  of  Gloster  and  Winchester,  in  1'  Henry 
VI,  as  follows:  "May.  Fie,  lords:  that  you,  being  supreme 
magistrates,  Thus  contumeliously  should  break  the  peace."  (Act 
I,  Scene  III.) 

King  Henry  VI  thus  commanded  the  peace:  "K.  Hen.  We 
charge  you,  on  your  allegiance  to  ourself,  to  hold  your  slaught- 
er'ng  hands  and  keep  the  peace."     (Act  III,  Scene  I.) 

Queen  Margaret  curses  Richard,  in  King  Richard  III:  "Q.  Mar. 
.  .  .  Oh,  let  them  keep  it,  till  thy  sins  be  ripe,  And  then 
hurl  down  their  indignation  on  thee,  The  troubler  of  the  poor 
world's  peace."     (Act  I,  Scene  III.) 

After  the  battle  of  Bosworth,  Richmond  thus  addresses  his 
troops,   in   reference  to   the   death  of  the  tyrant  Richard   III: 

bishop's  Cr.  Proc.  183. 


MUCH  ADO  ABOUT  NOTHING.  67 

Sec.  40.    Punishment  by  pressing  to  death.— 

"Hero     ...    If  I  should  speak, 

She  would  mock  me  into  air;  0,  she  would  laugh  me 
Out  of  myself,  press  me  to  death  with  wit."1 

This  is  no  doubt  a  reference  to  the  ancient  punish- 
ment of  pressing  a  criminal  charged  with  felony  to  death, 
for  his  malicious  refusal  to  enter  a  lawful  plea,  on  being 
arraigned.2  The  Poet  uses  this  punishment  in  different 
plays.3  This  was  known  to  the  old  common  'law  ae 
punishment  of  peine  forte  et  dure,  and  if  the  defendant 


"Richm.    Let  them  not  live  to  taste  this  land's  increase, 
That  would,  with  treason,  wound  this  fair  land's  peace; 
Now  civil  wounds  are  stop'd,  peace  lives  again; 
That  she  may  long  live  here,  God  say — Amen." 

(Act  V,  Scene  IV.) 
Speaking  to  his  peers,  at  his  trial,  Cranmer  said,  in  King 
Henry  VIII:  "Cran.  .  .  nor  is  there  living  (I  speak  it  with 
a  single  heart,  my  lords),  A  man  that  more  detests,  more  stirs 
against,  Both  in  his  private  conscience  and  his  place,  Defacers 
of  a  public  peace,  than  I  do."     (Act  V,  Scene  II.) 

Benvolio  said  to  Tybalt,  in  Romeo  and  Juliet,  on  parting  the 
servants  of  Capulet  and  Montague: 

"I  do  but  keep  the  peace;   put  up  thy  sword, 
Or  manage  it  to  part  these  men  with  me." 

(Act  I,  Scene  I.) 
Capulet  tells  Paris:     "And  Montague  is  bound,  as  well  as  I  in 
penalty  alike;  and  'tis  not  hard,  I  think,  For  men  so  old  as  we 
to  keep  the  peace."     (Act  I,  Scene  II.) 

Saturninus  (in  Titus  Andronicus)  speaks  of  the  "disturbers  of 
our  peace,"  buzzing  in  the  people's  ears  what  had  pass'd  which 
was  naught  but  lawful."     (Act  IV,  Scene  IV.) 

In  Titus  Andronicus,  (Act  II,  Scene  I)  Aaron  commands  the 
peace  In  the  customary  manner,  to  stop  the  quarrel  between 
Chiron  and  Demetrius,  as  follows:  "Clu'bs,  clubs,  these  lovers 
will  not  keep  the  peace." 

*Much  Ado  About  Nothing,  Act  III,  Scene  I. 
2  Fleta,  lib.  1,  C.  34. 

•Measure  for  Measure,  Act  V,  Scene  I;  Richard  II,  Act  III, 
Scene  IV. 


68  THE  LAW  IN  SHAKESPEARE. 

persisted  in  his  refusal  to  plead  arid  it  was  found  to  be 
because  of  his  own  malice  and  stubbornness,  instead  of 
due  to  his  own  physical  disability,  he  was  placed  upon  a 
board  and  pressed  with  heavy  weights,  until  the  life  was 
pressed  out  of  him.1 

Sec.  41.    "Statutes  of  the  Streets."— 

"Verges.     If  you  hear  a  child  cry  in  the  night,  you  must 

call  to  the  nurse  and  bid  her  still  it. 
Watch.     How  if  the  nurse  be  asleep  and  will  not  hear  us? 
Dogb.     Why,  then,  depart  in  peace,  and  let  the  child 

wake  her  with  crying ;  for  the  ewe  that  will  not  hear 

her  lamb  when  it  baes  will  never  answer  a  calf  when 

he  bleats."2 

It  is  quite  probable  that  this  part  of  this  scene  was  in- 
tended as  a  burlesque  upon  The  Statutes  of  the  Street,3  by 
one  provision  of  which  it  was  provided  that  "no  man  shall, 
after  the  houre  of  nyne  at  night,  keep  any  rule,  whereby 
any  such  suddaine  outcry  be  made  in  the  still  of  the 
night,  as  making  any  affray,  or  beating  his  wyfe,  or 
servant,  or  singing  or  revyling  in  his  house,  to  the  dis- 
turbance of  his  neighbours,  under  paine,"  etc.4 


This  method  of  treating  felons  who  stood  mute,  was  intro- 
duced some  time  between  the  5th  Hen.  Ill,  or  the  time  of  Brac- 
ton,  and  the  3d  Edw.  I.  They  were  to  be  bareheaded,  barefooted 
and  in  their  coat,  only,  ungirth,  confined  in  prison,  on  the  bare 
ground,  day  and  night,  with  only  bread  made  of  barley  and  bran, 
and  water,  the  day  they  did  not  eat,  and  they  were  to  be 
fastened  down  with  irons.     II  Reeve's  History  Eng.  Law.,  p.  425. 

For  changes  made  in  the  form  and  manner  of  this  punish- 
ment, in  the  reign  of  Henry  IV,  see  III  Reeve's  History  Eng. 
Law,  p.  439. 

1Fleta,  supra. 

2  Much  Ado  About  Nothing,  Act  III,  Scene  III. 

3  Statutes  of  the  Street,  by  Wolfe,  in  1595;  Rolfe's  Much  Ado 
About  Nothing,  p.  190,  notes. 

4  Sec.  30,  supra. 


MUCH  ADO  ABOUT  NOTHING.  69 

Sec.  42.    Qualifications  of  constable. — 

"Dogb.  First,  who  think  you  the  most  desartless  man 
to  be  constable? 

1  Watch.     Hugh  Outcake,  sir,  or  George  Seacoal ;  for  they 

can  write  and  read. 
Dogb.     Come     hither     neighbour     Seacoal.     God     hath 
blessed  you  with  a  good  name:  to  be  a  well  favored 
man  is  the  gift  of  fortune;  but  to  write  and  read 
comes  by  nature. 

2  Watch.     Both  which,  master  constable, — 

Dogb.  You  have ;  I  knew  it  would  be  your  answer.  Well, 
for  your  favor,  sir,  why,  give  God  thanks,  and  make 
no  boast  of  it;  and  for  your  writing  and  reading,  let 
that  appear  when  there  is  no  need  of  such  vanity. 
You  are  thought  here  to  be  the  most  senseless  and 
fit  man  for  the  constable  of  the  watch;  therefore, 
bear  you  the  lantern:  this  is  your  charge;  you  shall 
comprehend  all  vagrom  men:  you  are  to  bid  any 
man  stand,  in  the  prince's  name."1 

The  Poet's  deep  seated  dislike  for  constables  and  jus- 
tices of  the  peace  is  here  manifested.  That  the  "con- 
stable of  the  watch"  was  "senseless,"  hence  the  "fit  man" 
for  the  place  is,  of  course,  satire.  The  duties  of  a  con- 
stable were  to  "keep  the  peace,"  in  his  district.2  To  "bear 
the  lantern,"  was  a  ridiculous  duty  assigned  the  constable 
to  further  add  to  the  disgrace  of  his  office.  The  duty  to 
"comprehend  all  vagrom  men,"  was  intended  to  apply  to 
the  constable's  duty  to  apprehend  vagrants,  or  those  liv- 
ing idly  and  refusing  to  work.3  The  right  "to  bid  any 
man  stand,  in  the  prince's  name,"  embraced  the  common 
law  right  and  duty  of  any  peace  officer  to  arrest  or  detain 
any  person  committing  a  breach  of  the  peace  in  his  pres- 
ence.4 


1  Much  Ado  About  Nothing,  Act  III,  Scene  III. 

21  Bl.  Comm.  356;  Jacob,  Law  Diet.;  Coke,  4  Inst,  267. 

»5  East.  339. 

*4  Bl.  Comm.  292;  1  Carr.  &  P.  40. 

Upon  the  testimony  of  Olds,  corroborative  of  the  report  that 
when  22,  Shakespeare,  was  apprehended  for  "poaching"  on  the 


70  THE  LAW  IN  SHAKESPEARE. 

Sec.  43.    Duties  of  the  nightwatch. — 

"Dogb.  If  you  meet  a  thief,  you  may  suspect  him,  by 
virtue  of  your  office,  to  be  no  true  man ;  and,  for 
such  kind  of  men,  the  less  you  meddle  or  make  with 
them,  why,  the  more  is  for  your  honesty. 

2  Watch.  If  we  know  him  to  be  a  thief,  shall  we  not  lay 
hands  on  him? 

Dogb.  Truly,  by  your  office,  you  may ;  but  I  think,  they 
that  touch  pitch  will  be  denied:  the  most  peaceable 
way  for  you,  if  you  do  take  a  thief,  is,  to  let  him 
show  himself  what  he  is,  and  steal  out  of  your  com- 
pany.    ... 

Verg.  If  you  hear  a  child  cry  in  the  night,  you  must  call 
to  the  nurse  and  bid  her  still  it. 

2  Watch.  How  if  the  nurse  be  asleep,  and  will  not  hear 
us? 

Dogb.  Why,  then,  depart  in  peace,  and  let  the  child 
wake  her  with  crying;  for  the  ewe  that  will  not  hear 
her  lamb,  when  it  baes,  will  never  answer  a  calf,  when 
he  bleats."1 

The  same  satire,  which  characterizes  the  Poet's  feeling 
toward  constables,  justices  and  such  like  petty  officers, 
manifests  itself  in  this  colloquy.  That  the  thief  should 
be  let  go,  and  even  the  crying  child  abandoned,  if  the 

premises  of  Sir  Thos.  Lucy  and  next  morning  was  arraigned 
before  Sir  Thomas,  who  was  a  justice  of  the  peace,  of  Charlecote, 
the  bitter  satire  and  ridicule  which  the  Poet  always  heaps  upon 
constables  and  justices,  when  they  are  introduced  into  his  plays, 
would  seem  to  furnish  additional  evidence  of  the  truth  of  this 
report. 

In  Love's  Labour's  Lost,  the  Constable  is  named  "Dull"  and 
he  is  made  to  say:  "Dull.  I'll  make  one  in  a  dance,  or  so;  or  I 
will  play  on  the  tabor  to  the  worthies,  and  let  them  dance  the 
hay."  And  to  this  the  schoolmaster  replies:  "Hoi.  Most  dull, 
honest  Dull,  to  our  sport  away."     (Act  V,  Scene  I.) 

In  All's  Well  That  Ends  Well  (Act  II,  Scene  II)  the  constable 
is  presented  as  about  the  lowest  of  officials,  in  the  following 
verse:  "Clo.  From  below  your  duke,  to  beneath  your  con- 
stable,  it  will  fit  any  question." 

JMuch  Ado  About  Nothing,  Act  III,  Scene  III. 


MUCH  ADO  ABOUT  NOTHING.  71 

nurse  could  not  be  found,  is,  indeed,  an  extreme  criticism 
of  such  officers'  duties,  and  the  ignorance  of  such  officer 
is  presented  by  the  fact  that  it  was  not  known  that  a  lamb 
bleats,  while  a  calf  baes. 

Back  of  this  humor,  however,  is  the  legal  proposition, 
embodied  by  the  question  of  the  Watch,  as  to  his  right  to 
arrest  without  a  warrant  and  the  reply,  that  by  virtue 
of  his  office,  he  had  such  right.  This  is  strictly  accord- 
ing to  law,  for  any  peace  officer,  such  as  a  constable  or 
watchman,  may  arrest  without  a  warrant,  when  a  crime 
is  committed  in  his  presence,  or  when  he  has  reasonable 
grounds  to  believe  a  felony  has  been  committed  and  that 
the  party  arrested  is  the  felon.1 

Sec.  44.    False  imprisonment. — 

"Dogb.  This  is  the  end  of  the  charge.  You,  constable, 
are  to  present  the  prince's  own  person;  if  you  meet 
the  prince  in  the  night,  you  may  stay  him. 

Verg.     Nay,  by'r  lady,  that  I  think,  he  cannot. 

Dogb.  Five  shillings  to  one  on't,  with  any  man  that 
knows  the  statutes,  he  may  stay  him;  marry,  not 
without  the  prince  be  willing:  for,  indeed,  the  watch 
ought  to  offend  no  man ;  and  it  is  an  offense  to  stay 
a  man  against  his  will."2 

This  graceful  backing  down  from  a  wrong  position  on 
the  law,  as  such  petty  officers  are  accustomed  to  do,  by 
drawing  a  nice  distinction,  such  as  is  done  in  this  case, 
is  well  presented  here. 

The  charge  that  the  constable  represents  the  prince's 
own  person,  means  as  a  conservator  of  the  peace.  The 
charge  that  he  possesses  the  authority  to  detain  the  prince 
himself,  when  questioned,  leads  to  the  adroit  retraction, 
by  the  use  of  the  distinction  that  he  may  be  restrained, 
if  he  so  desires.  Then  following  this  qualification  of  the 
former  position,  is  the  proper  legal  idea  of  a  false  im- 


*3  Taunt.  14;  3  Campb.  420;  4  Bl.  Comm.  292;  1  Saund.  77. 
2  Much  Ado  About  Nothing,  Act  III,  Scene  III. 


72  THE  LAW  IN  SHAKESPEARE. 

prisonment  or  arrest,  arising  from  a  wrongful  detention 
of  any  man,  against  his  will.  At  common  law,  any  un- 
lawful restraint  of  a  man's  liberty,  whether  in  a  place  used 
for  imprisonment  generally,  or  in  a  place  so  used  on  the 
particular  occasion,  with  or  without  bolts  and  bars,  con- 
stituted a  false  imprisonment.1  Of  course  the  arrest  of 
a  criminal  or  one  believed  to  have  committed  a  known 
offense,  was  not  within  this  rule,  for,  in  such  case  the 
detention  was  not  held  to  be  wrongful.  But  that  the 
elements  of  a  false  arrest  were  duly  understood  by  the 
Poet,  is  evidenced  by  the  last  line  of  this  verse. 

Sec.  45.    Preliminary  hearing. — 

"Dogb.  Go,  good  partner,  go;  get  you  to  Francis  Sea- 
coal  ;  bid  him  bring  his  pen  and  inkhorn  to  the  goal ; 
we  are  now  to  examination  these  men. 

Verg.     And  we  must  do  it  wisely. 

Dogb.  We  will  spare  for  no  wit,  I  warrant  you;  here's 
that  (touching  his  forehead)  shall  drive  some  of 
them  to  a  non-com:  only  get  the  learned  writer  to 
set  down  our  excommunication,  and  meet  me  at  the 
goal.3 

As  the  evidence  of  the  witnesses  was  all  written  down 
at  the  preliminary  hearings,  before  magistrates,  when  one 
was  charged  with  an  offense,  to  preserve  the  evidence  for 
the  benefit  of  the  court  and  jury,  which  would  try  the 
accused  for  the  offense,  this  is  the  proceeding  here  re- 
ferred to,  in  requesting  the  "pen  and  inkhorn,"  as  a  pre- 
liminary to  the  examination. 

The  expression  that  some  of  the  offenders  shall  be 
driven,  by  the  play  of  his  wit,  "to  a  non-com,"  evidently 
means  that  he  will  push  them  to  the  extreme  of  madness. 
In  legal  parlance,  a  non-compos  mentis  is  one  not  of  sound 

»2   Bishop,   Cr.    Law,    669;    4    Bl.    Comm.    218. 
a  3  Hawkins,  PI.  Cr.  164;   4  Bl.  Comm.  292. 
8  Much  Ado  About  Nothing,  Act  III,  Scene  V. 
4  2  Leach  Cr.  Cas.  552;   4  Bl.  Comm.  296. 


MUCH  ADO  ABOUT  NOTHING.  73 

mind  or  memory  and  the  terms  signify  all  species  of  mad- 
ness, whether  arising  from  idiocy,  sickness,  or  otherwise.1 
The  abbreviation  of  these  legal  terms,  by  the  constable, 
is  no  doubt  used,  to  show  his  extreme  ignorance  and  arro- 
gance, like  the  suffix  to  the  word  "examine,"  in  the  third 
line;  the  egotistical  assurance  of  the  constable,  and  the 
use  of  the  prefix  and  wrong  use  of  the  word  in  the  last 
line  of  the  verse  quoted. 

Sec.  46.    Examination  before  magistrate. — 

"Dogb.     Is  our  whole  dissembly  appeared? 

Verg.     0,  a  stool  and  a  cushion,  for  the  sexton. 

Sexton.     Which  be  the  malefactors? 

Dogb.     Marry,  that  am  I  and  my  partner. 

Verg.  Nay,  that's  certain;  we  have  the  exhibition  to 
examine. 

Sexton.  But  which  are  the  offenders  that  are  to  be  ex- 
amined?   Let  them  come  before  master  constable."2 

The  ignorance  of  the  constable  is  again  portrayed,  with 
seeming  pleasure  by  the  Poet,  in  this  presentation  of  an 
examination  before  the  magistrate.  Such  examinations 
were  usually  accomplished  by  bringing  the  witnesses  and 
the  accused  before  a  justice  of  the  peace  or  peace  officer, 
and  writing  down  the  evidence  of  the  witnesses.  If  no 
cause  for  his  detention  should  be  shown,  the  prisoner  was 
discharged,  but  if  a  crime  was  uncovered,  or  sufficient 
suspicion  attached  to  the  charge,  to  warrant  putting  him 
upon  his  trial,  the  evidence  of  the  witnesses  was  certified 
by  the  magistrate  to  the  court  where  he  was  to  be  tried, 
with  the  recognizance  of  the  witnesses  and  the  prisoner 
was  committed  to  jail  or  placed  under  bond  to  answer  to 
the  charges  filed  against  him.3  The  word  malefactor, 
meaning  a  wrongdoer,  is  one  who  has  committed  some 


^oke,  Litt.  247;  4  Coke,  124;  Shelford,  Lun.  1. 

2  Much  Ado  About  Nothing,  Act  IV,  Scene  II. 

3  2  Carr  &  K.  223;  4  Bl.  Comm.  296;  2  Leach,  Cr.  Cas.  552. 


74  THE  LAW  IN  SHAKESPEARE. 

crime,1  but  as  the  term  is  usually  only  applied  to  a  per- 
son, after  conviction  for  some  offense,  it  is  irregular  to 
so  term  one  who  is  merely  accused;  but  as  it  seemed  a 
part  of  the  Poet's  plan  to  show  how  soon  the  conviction 
or  holding  of  the  accused  would  follow,  in  such  a  court, 
after  the  filing  of  the  charge,  the  term  is  perhaps  used 
with  this  intent,  in  this  instance. 

Sec.  47.    Householder. — 

"Dogb.     Dost  thou  not  suspect  my  place?    Dost  thou  not 
suspect  my  years? — O  that  he  were  here  to  write  me 
down — an  ass: — but,  masters,  remember  that  I  am 
an  ass;  though  it  be  not  written  down,  yet  forget 
not  that  I  am  an  ass : — No,  thou  villain,  thou  art  full 
of  piety,  as  shall  be  proved  upon  thee  by  good  wit- 
ness.    I  am  a  wise  fellow;  and,  which  is  more,  an 
officer ;  and,  which  is  more,  a  householder :  and,  which 
is  more,  as  pretty  a  piece  of  flesh  as  any  is  in  Messina ; 
and  one  that  knows  the  law,  go  to;  and  a  rich  fel- 
low, enough,  go  to ;  and  a  fellow  that  hath  had  Josses ; 
and  one  that  hath  two  gowns,  and  everything  hand- 
some about  him: — Bring  him  away.     O,  that  I  had 
been  writ  down, — an  ass."2 

This  portrayal  of  the  ignorance  of  the  constable,  is  an- 
other evidence  of  the  Poet's  dislike  for  this  class  of  officers. 
The  misnomer  that  the  prisoner  was  full  of  "piety"  in- 
stead of  guilt,  and  that  they  did  not  "suspect'  his  place 
or  years,  as  well  as  the  bragging  and  egotistical  bearing 
of  the  speaker,  show  the  ignorant  bravado  that  too  often 
characterizes  such  petty  officers. 

The  claim  to  being  a  "householder,"  illustrates  the  basis 
of  certain  rights  of  citizenship  which  attach  to  a  "house- 
holder," or  one  who  has  and  provides  for  a  household,3  as 
distinguished  from  one  who  is  not  so  possessed. 

The  Archbishop  of  Canterbury,  speaking  of  magistrates,  in 
Henry  V,  said:  "Cant.  .  .  some,  like  magistrates,  correct  at 
home."     (Act  I,  Scene  II.) 

1Bouvier,  Law  Diet. 

2  Much  Ado  About  Nothing,  Act  IV,  Scene  II. 

3Bouvier,  Law  Diet. 


MUCH  ADO  ABOUT  NOTHING.  75 

Sec.  48.    Preliminary  examination  for  burglary. — 

"Dogb.  Yea,  marry,  that's  the  eftest  way : — Let  the  watch 
come  forth: — Masters,  I  charge  you,  in  the  prince's 
name,  accuse  these  men. 

1  Watch.     This  man  said,  sir,  that  Don  John,  the  prince's 

brother,  was  a  villain. 
Dogb.     Write  down — prince  John  a  villain — why,  this  is 

flat  perjury,  to  call  a  prince's  brother — villain. 
Bora.     Master  constable, — 
Dogb.     Pray  thee,  fellow,  peace;  I  do  not  like  thy  look, 

I  promise  thee. 
Sexton.     What  heard  you  say  him  else? 

2  Watch.     Marry,  that  he  had  received  a  thousand  ducats 

of  Don  John  for  accusing  the  lady  Hero  wrongfully. 
Dogb.     Flat  burglary,  as  ever  was  committed. 
Verg.     Yea,  by  the  mass,  that  it  is."1 

This  portrayal  of  the  ignorance  and  misuse  of  the  legal 
terms,  by  the  constable,  while  illustrating  a  common  trait 
of  such  petty  officers,  seems  to  be  repeated  with  a  method. 

The  crime  of  "perjury,"  of  course,  was  not  committed 
by  the  calling  of  Don  John  a  villain,  but  if  any  offense 
this  would  be  slander  only,  as  it  would  be  slander,  instead 
of  "burglary,"  to  wrongfully  accuse  Hero. 

The  examination  of  the  witnesses  here  followed  was 
that  prescribed  by  the  common  law  by  a  magistrate,  to 
ascertain  if  a  bailable  offense  had  been  committed.2  At 
common  law  the  accused  could  not  be  examined,  but  only 
the  witnesses  against  him.3  Hence,  the  injunction  to  the 
accused,  to  keep  his  peace. 

Sec.  49.    Trial  by  manly  combat. — 

"Leonato.     .     .     .     Thou   hast   so   wrong'd  mine  inno- 
cent child  and  me 
That  I  am  forc'd  to  lay  my  reverence  by, 
And,  with  grey  hairs  and  bruise  of  many  days, 
Do  challenge  thee  to  trial  of  a  man.4 

1Much  Ado  About  Nothing,  Act  IV,  Scene  II. 
2  4  Bl.  Comm.   296;    2  Leach,   Cr.   Cas.   552. 
8Roscoe,  Cr.  Evid.  44;    Phillipps,  Evid.   106. 
4  Much  Ado  About  Nothing,  Act  V,  Scene  I. 


76  THE  LAW  IN  SHAKESPEARE. 

This  was  the  custom  of  the  common  law,  when  a  litigant 
asserted  his  writ  of  right,  and  chose  to  defend  his  right 
by  duel.1  Shakespeare  was  evidently  familiar  with  this 
barbarous  practice,  for  he  refers  to  the  trial  by  duel,  or 
battle,  in  different  plays.2  The  demandant  met  the  de- 
fendant in  an  open  test  of  strength  and  they  fought  until 
one  or  the  other  was  killed  or  vanquished,  and  the  victor 
was  held  to  have  won  his  suit.  If  the  demandant  died 
a  natural  death  before  the  battle,  or  duel,  was  fought,  he 
had  a  right  to  be  represented  by  his  son,  born  in  lawful 
wedlock,  but  if  his  death  was  by  any  fault  or  neglect  of 
his,  this  was  held  to  be  an  end  of  the  contest,  in  favor  of 
his  opponent.3 

Sec.  50.    Count — Extra-judicial  confession  on. — 

"Bora.  Sweet  prince,  let  me  go  no  further  to  mine  an- 
swer; do  you  hear  me,  and  let  this  count  kill  me.  I 
have  deceived  even  your  very  eyes:  what  your  wis- 
doms could  not  discover,  these  shallow  fools  have 
brought  to  light;  who,  in  the  night,  overheard  me 
confessing  to  this  man,  how  Don  John,  your  brother, 
incensed  me  to  slander  the  lady  Hero ;  how  you  were 
brought  into  the  orchard,  and  saw  me  court  Margaret, 
in  Hero's  garments;  how  you  disgraced  her,  when 
you  should  marry  her:  my  villany  they  have  upon 
record;  which  I  had  rather  seal  with  my  death,  than 
repeat  over,  to*  my  shame:  the  lady  is  dead  upon 
mine  and  my  master's  false  accusation ;  and,  briefly, 
I  desire  nothing  but  the  reward  of  a  villain. '  '4 

The  confession  of  record,  or  the  examination  of  the 
witnesses,  by  which  the  evidence  of  the  offense  was  tran- 
scribed, is  referred  to,  by  the  speaker,  by  the  statement  of 
the  fact  that  "my  villainy  they  have  upon  record."  This 
was  a  repetition  of  the  extra-judicial  confession  that  the 


*1  Reeve's  History  Eng.  Law,  p.  393. 
"Richard  II,  Act  I,  Scene  I;  Act  IV,  Scene  I. 
8 1  Reeve's  History  Eng.  Law,  supra. 
4  Much  Ado  About  Nothing,  Act  V,  Scene  I. 


MUCH  ADO  ABOUT  NOTHING.  77 

watchman  heard  him  in  the  night  "confessing  to  this 
man."  The  willingness  expressed,  to  "let  this  count  kill 
me,"  refers  to  the  different  charges  or  paragraphs  in  a 
declaration  or  indictment,  hy  which  the  pleader  set  up 
the  offenses  or  the  causes  of  action.1  Each  count  usually 
refers  to  a  different  offense  or  cause  of  action.2 

Sec.  51.    False  testimony. — 

"D.  Pedro.     Officers,  what  offense  have  these  men  done? 

Dogb.  Marry,  sir,  they  have  committed  false  report; 
moreover,  they  have  spoken  untruths;  secondarily, 
they  are  slanders;  sixth  and  lastly,  they  have  belied 
a  lady;  thirdly,  they  have  verified  unjust  things: 
and,  to  conclude,  they  are  lying  knaves."3 

The  officer  here — through  the  Poet's  satire — attempts  to 
make  of  the  offense  of  slander  and  of  bearing  false  testi- 
mony, many  separate  distinct  offenses,  which  are,  in 
reality,  the  same,  as  the  Poet  clearly  knows.  To  circu- 
late false  reports;  to  speak  untruths  and  to  have  "belied 
a  lady,"  are  all  different  ways  of  charging  a  slander,  but 
to  "verify  unjust  things,"  while  a  mere  slander,  if  made 
out  of  court,  too,  would  be  bearing  false  testimony,  if 
made  in  court,  hence  would  be  a  criminal  offense,  for  if  a 
witness  swears  to  what  he  knows  to  be  untrue,  this  is  a 
crime.4 

Sec.  52.    The  scales  of  justice. — 

"Dogb.  Come,  you,  sir;  if  justice  cannot  tame  you,  she 
shall  ne  'er  weigh  more  reasons  in  her  balance ;  nay,  an 
you  be  a  cursing  hypocrit  once,  you  must  be  looked 
to."5 

This  personification  of  justice,  from  the  mythological 
idea  of  a  blind-fold  Goddess,  dispensing  justice,  through 


1  Gould,  PI.  c.  4;  Stephen,  PI.  279. 

2  Ante  idem. 

3  Much  Ado  About  Nothing,  Act  V,  Scene  I. 
♦Roscoe,  Cr.  Evid.  362. 

5  Much  Ado  About  Nothing,  Act  V,  Scene  I. 


78  THE  LAW  IN  SHAKESPEARE. 

the  medium  of  evenly  balanced  scales,  upon  which  the 
rights  of  litigants  were  weighed,  is  the  current  way  of 
typifying  justice,  because  of  the  prevalency  of  the  myth, 
which  so  represented  this  virtue.  As  the  reasons  for  and 
against  a  criminal,  in  the  investigation  of  a  charge,  would 
be  the  consideration  entering  into  the  conclusion  of  his 
guilt  or  innocence,  the  expression,  "she  shall  ne'er  weigh 
more  reasons  in  her  balance,"  is  tantamount  to  saying  that 
the  Goddess  herself  would  be  so  convinced  of  the  offender's 
guilt,  in  this  instance,  that  if  he  was  not  punished,  the 
scales  of  justice  would  be  wholly  discarded. 


Referring  to  the  enforcement  of  the  law  against  him,  when 
he  was  Prince  of  Wales,  King  Henry  V,  said  to  the  Lord  Chief 
Justice,   in   2'   Henry   IV: 

"King.    You  are  right,  justice,  and  you  weigh  this  well; 
Therefore  still  bear  the  balance  and  the  sword." 

(Act  V,  Scene  II.) 
The  Goddess  of  Justice,   like   the  God   of  Love,   was  painted 
blind  that  she  might  not  look  with  the  eye,  but  with  the  mind, 
or,  as  the  Poet  expresses  it,  in  the  latter  instance, 
"Love  looks  not  with  the  eyes,  but  with  the  mind, 
And  therefore  is  winged  Cupid  painted  blind." 

(Midsummer  Night's  Dream,  Act  I,  Scene  I.) 
2'  King  Henry  VI  said,  in  speaking  of  the  offenses  committed  by 
Duchess  of  Gloster: 

liK.  Hen.    .     .    And  poise  the  cause  in  justice's  equal  scales, 
Whose  beam  stands  sure,  whose  rightful  cause  prevails." 

(Act  II,  Scene  I.) 
Before  murdering  Desdemona,  Othello  observes  of  her  breath: 
"0  balmy  breath,  that  dost  almost  persuade  Justice  to  break  her 
sword."     (Act  V,  Scene  II.) 


CHAPTER  VII. 

"MIDSUMMER    NIGHT'S    DREAM." 

Sec.  53.  Jurisdiction  of  Athenian  Laws. 

54.  Parent  and  Child,  under  Greek  Law. 

55.  Parent's  right  of  Infanticide,  by  Athenian  Law. 

56.  Pleading  for  Fee. 

57.  Parent's  Consent  to  Child's  Marriage. 

58.  Limitation  of  Municipal  Law. 

Sec.  53.    Jurisdiction  of  Athenian  laws. — 

"Lys.     A  good  persuasion ;  therefore,  hear  me  Hermia. 
I  have  a  widow  aunt,  a  dowager 
Of  great  revenue,  and  she  hath  no  child; 
From  Athens  is  her  house  remote  seven  leagues, 
And  she  respects  me  as  her  only  son. 
There,  gentle  Hermia,  may  I  marry  thee; 
And  to  that  place  the  sharp  Athenian  law  cannot 
pursue  us."1 

This  reference  to  the  " widow  aunt,"  it  is  believed,  is 
not  so  much  to  show  a  guardian,  who  could  consent  to 
the  marriage,  as  to  state  the  fact  that  her  home  would 
furnish  a  haven,  beyond  the  jurisdiction  of  the  law  of 
Athens.  If  the  residence  of  the  widow  aunt,  was,  as 
stated,  a  distance  equivalent  to  seven  English  leagues,  it 
would  be  about  twenty-one  miles  from  Athens  and  this 
distance  would  no  doubt  have  carried  Lysander  and  Her- 
mia into  another  district,  where  different  laws  obtained. 
For  it  must  be  remembered  that  the  free  states  of  Greece 
were  merely  cities  with  their  districts,  and  each  dis- 
trict possessed  its  own  constitution  and  had  exclusive  man- 
agement of  its  own  concerns.2  The  different  states  of 
Attica,  for  instance,  had  their  respective  heads,  or  presi- 
dents, and  the  different  peoples  or  tribes  adopted  their 
own  laws  and  regulations  in  so  far  as  they  did  not  con- 


1  Midsummer  Night's  Dream,  Act  I,  Scene  I. 

2  3   St.  John's  Manners  &  Customs  of  Ancient  Greece,  76,  77; 
Schoman's  Dissertation  on  the  Assemblies  of  the  Athenians,  346, 

(79) 


80  THE  LAW  IN  SHAKESPEARE. 

flict  with  the  general  laws  of  the  State.1  So  if  the  dis- 
tance to  be  traveled  would  carry  the  lovers  into  another 
district  of  the  state,  it  was  no  doubt,  true,  as  the  Poet 
states,  that  the  "sharp  Athenian  law"  could  not  pursue 
them. 

Sec.  54.    Parent  and  child,  under  Greek  law.— 

"Ege.     .     .     .     And,  my  gracious  duke, 

Be  it  so  she  will  not  here,  before  your  grace, 
Consent  to  marry  with  Demetrius, 
I  beg  the  ancient  privilege  of  Athens; 
As  she  is  mine,  I  may  dispose  of  her; 
Which  shall  be  either  to  this  gentleman, 
Or  to  her  death;  according  to  our  law, 
Immediately  provided  in  that  case."2 

Egeus  here  claimed  the  law,  as  it  was  known  to  exist, 
not  only  in  ancient  Greece,  but  in  Egypt,  Persia  and 
Rome,  as  well.3  According  to  the  "ancient  privilege  of 
Athens,"  the  child  was  regarded  more  as  the  property  of 
the  parent  than  as  an  independent  rational  being,  and  a 
father  was  allowed  a  very  absolute  dominion  over  the 
child.4  The  Twelve  Tables,5  of  the  Romans,  were  no 
doubt  taken  by  the  deputies  from  the  laws  of  ancient 
Greece  and  the  fourth  of  these  tables  gave  the  father  not 
only  the  power  of  sale,  but  the  power  of  life  and  death,  as 
well,  over  his  children.6    After  the  expulsion  of  Tarquin, 

1Hereen,  on  Political  History  of  Ancient  Greece  (Oxford  ed.), 
1834. 

2  Midsummer  Night's  Dream,  Act  I,  Scene  I. 

'St.  John's  Hist.  Manners  &  Customs  Anc.  Greece,  i,  120-125; 
2  Kent's  Comm.   (12  ed.),  204  and  note. 

4  Taylors,  Elem.  Civ.  Law,  395,  402;  Caesar,  de  Bel.  Gal.  lib.  6, 
c.  19;  2  Kent's  Comm.   (12  ed.),  204  and  note. 

•Livy,  b.  6,  c.  1;  Heineccii  Hist.  Juris  Civilis,  lib.  1,  sec.  26; 
Cicero,  Orat.  in  Cat,  3,  4;  Niebuhr,  Roman  Hist,  ii,  235  (ed- 
Phil.  1835);  2  Hooke's  Roman  Hist.,  c.  27;  Gravina,  de  Ortu  et 
Prog.  J.  C.  32;   1  Arnold's  Hist,  of  Rome,  284. 

•Gravina,  De  Jura,  Naturalia  Gentium  et  XII  Tabularum;  2 
Kent's  Comm.    (12  ed.)    520,  521,  and  note. 


MIDSUMMER  NIGHT'S  DREAM.  81 

Rome  suffered  from  an  absence  of  written  laws  and  the 
Twelve  Tables  were  prepared  by  a  commission,  after  a 
visit  to  Athens  to  learn  the  laws  and  study  the  institu- 
tions of  that  country.1  The  laws  prepared  or  transcribed 
by  this  commission  were  engraven  on  tablets  of  brass,2  and 
they  continued  in  effect  until  the  time  of  the  Emperor 
Hadrian.3 

Sec.  55.    Parent's  right  of  infanticide  by  Athenian  law. — 

"The.     .  .     .     For  you,  fair  Hermia,  look  you  arm  your 
self 
To  fit  your  fancies  to  your  father's  will; 
Or  else  the  law  of  Athens  yield  you  up 
(Which  by  no  means  we  may  extenuate) 
To  death,  or  to  a  vow  of  single  life."4 


Under  Draco's  laws,  death  in  Athens  was  appointed  for  almost 
all  offenses.  Those  convicted  of  idleness  or  the  theft  of  a  cab- 
bage or  an  apple  were  made  to  suffer  the  same  penalties  as 
criminals  who  committed  sacrilege  or  murder,  according  to 
Plutarch.      (Plutarch's   Life   of   Solon.) 

From  the  most  authentic  sources  it  is  established  that  the 
laws  permitting  the  sale  or  murder  of  daughters,  by  fathers  or 
brothers,  stood  in  Athens,  until  such  barbarous  ordinances  were 
repealed,  along  with  the  law  which  permitted  the  creditor  to  take 
the  person  of  his  debtor  as  his  security  for  a  debt  owing  to  him, 
by  the  wise  Solon. 

"Solon  forbade  the  sale  of  daughters  or  sisters  into  slavery 
by  fathers  or  brothers,  a  prohibition  which  shows  how  much 
females  had  before  been  looked  upon  as  articles  of  property." 
3  Grote's  Greece,  99,  135,  140;  Plutarch's  Life  of  Solon. 

The  names  of  Theseus  and  Demetrius,  in  this  play,  are  no 
doubt  selected  by  the  Poet  for  Theseus,  king  of  Attica,  who 
first  established  the  political  power  of  Athens  and  made  it  the 
metropolis  and  Demetrius  Phalereus  or  Demetrius  Poliorcetes, 
who  restored  the  constitution  of  Athens,  after  Antipater's 
oligarchy  of  wealth.    Grote's  Greece,  vol.  12,  p.  324. 

4  Kent's  Comm.   (12  ed.),  520. 

a Cicero,  Orat.  in  Cat.  3,  4;   1  Kent's  Comm.   (12  ed.),  525. 

•2  Kent's  Comm.  (12  ed.),  204. 

*  Midsummer  Night's  Dream,  Act  I,  Scene  I. 


82  THE  LAW  IN  SHAKESPEARE. 

Theseus  here  but  proclaimed  the  law  of  Athens,  as  it 
existed  at  a  period  anterior  to  the  time  of  Solon,  for  at 
this  period  in  the  world's  history,  the  people  generally 
carried  the  power  of  the  parent  over  the  person  and  lib- 
erty of  the  child  to  an  atrocious  extent  and  not  only  in 
Greece,  but  in  Persia,  Egypt,  Gaul  and  Rome,  infanticide 
was  tolerated  and  the  lives  and  liberty  of  the  children  were 
placed  in  the  hands  of  the  father.1  In  Rome  the  power  of 
life  and  death  over  the  child  was  not  regarded  as  an  abso- 
lute license  of  the  parent,  but  was  a  species  of  domestic 
jurisdiction,  recognized  as  a  lawful  right  of  the  parent. 
This  power,  in  Rome,  was  weakened  a  great  deal  in  the 
time  of  Augustus,  but  it  was  perhaps  not  until  Valentinian 
and  Valens  made  the  offense  of  killing  infants  a  capital 
crime,  that  the  practice  was  abolished  in  Rome.2 

In  Greece,  at  the  time  of  the  play,  the  Poet  makes  this 
horrible  practice  still  within  the  power  of  a  parent  and  no 
doubt  this  is  correct,  for  prior  to  the  time  of  Solon,  under 
the  ordinances  of  Draco,  the  right  was  recognized  as  with- 
in the  lawful  power  of  a  parent,3  which  Theseus  declines 
to  "extenuate." 

Sec.  56.    Pleading  for  fee.— 

"Puck.     Captain  of  our  fairy  band, 
Helena  is  here  at  hand, 
And  the  youth,  mistook  by  me, 


Baylor's  Elements  of  Civil  Law,  395,  402;  1  St.  John's  Hist. 
Manners  &  Customs  of  Ancient  Greece,  120-125;  Voyage  du 
Anarcharis  en  Grece,  iii,  c.  26;  Justinian's  Inst.  1,  9;  Caesar  de 
Bel.  Gal.  lib.  6,  c.  19;  Sallust,  Bel.  Cat.  c.  39;  De  Patria  Potestate; 
Heinneccius,  Syntagma  Ant.  Rome,  etc.,  lib.  1,  tit.  9,  Opera  iv; 
Rynkershoek's  Opusculum,  de  jure,  etc.,  Opera  1,  346;  Noodt,  de 
Partus  Expositione  et  Nice  apud  Veteres.  Infanticide  was  the 
horrible  vice  of  all  antiquity.  Ill  Gibbon's  History,  55-57.  The 
Roman  authors  termed  this  power  of  the  father  patria  majestas. 
Heinneccius,  Syntagma  Antiq.  Rome,  Jur.  lib.  1,  tit.  9,  Opera  iv; 
7  Am.  Law  Rev.  61. 

'Taylor's  Elements  Civil  Law,  403-406;  2  Kent's  Comm.  (12 
ed.)   204. 

'Plutarch's  Life  of  Solon;   3  Grote's  Greece,  99,  135. 


MIDSUMMER  NIGHT'S  DREAM.  83 

Pleading  for  a  lover's  fee, 

Shall  we  their  fond  pageant  see? 

Lord,  what  fools  these  mortals  be."1 

Demetrius  is  here  placed  in  the  attitude  of  a  lawyer 
pleading  for  his  fee.  In  law,  the  fee  is  usually  a  recom- 
pense for  the  pleading.  In  other  words,  a  reward  given 
to  the  counselor  or  attorney,  for  the  execution  of  his  office 
or  by  way  of  recompense  for  his  professional  services.2 
Fees  differ  from  costs,  in  that  the  former  are  a  recompense 
for  the  services  rendered,  while  the  latter  are  but  an 
indemnity  for  money  expended  or  laid  out.3 


1  Midsummer  Night's  Dream,  Act  III,  Scene  II. 
2Cowel,  Bouvier. 
3  9  Wheat.  262. 

According  to  Halliwell-Phillipps,  the  phrase  had  the  specific 
meaning  of  "three  kisses."  Rolfe's  Midsummer  Night's  Dream, 
p.  182,  notes. 

The  grasping  quality  of  some  attorneys  is  referred  to,  in  All's 
Well  That  Ends  Well  (Act  II,  Scene  II),  as  follows:  "Clo.  As 
fit  as  ten  groats  is  for  the  hand  of  an  attorney." 

Richard  tells  Anne,  in  King  Richard  III:  "Glo.  .  .  now 
thy  beauty  is  propos'd  my  fee,  My  proud  heart  sues  and  prompts 
my  tongue  to  speak."     (Act  I,  Scene  II.) 

On  promising  to  circulate  the  false  rumor  of  his  brother's 
bastardy,  Buckingham  tells  Gloster,  in  King  Richard  III:  "Buck. 
Doubt  not,  my  lord;  I'll  play  the  orator,  As  if  the  golden  fee, 
for  which  I  plead,  Were  for  myself."     (Act  III,  Scene  V.) 

Ulysses  said,  in  Troilus  and  Cressida,  that  "supple  knees  feed 
arrogance,  and  are  the  proud  man's  fees."     (Act  III,  Scene  III.) 

In  the  dialogue  between  Mercutio  and  Romeo,  in  Romeo  and 
Juliet,  in  his  reference  to  Queen  Mab,  Mercutio,  after  describing 
her  state,  said:  "And  in  this  state  she  gallops,  night  by  night, 
Through  lovers'  brains  and  then  they  dream  of  love;  .  . 
O'er  lawyers'  fingers,  who  straight  dream  on  fees."  (Act  I, 
Scene  IV.) 

Tamora,  in  Titus  Andronicus,  considers  the  rape  of  Lavinia, 
as  the  fee  due  her  sons,  when  she  denies  her  interference  to  save 
her,   in  these  words: 
"Tam.    So  should  I  rob  my  sweet  sons  of  their  fee: 

No,  let  them  satisfy  their  lust  on  thee."     (Act  II,  Scene  III.) 


84  THE  LAW  IN  SHAKESPEARE. 

Sec.  57.    Parent's  consent  to  child's  marriage. 

"Ege.     Enough,  enough,  my  lord;  you  have  enough; 
I  beg  the  law,  the  law  upon  his  head. — 
They  would  have  stolen  away,  they  would,  Deme- 
trius, 
Thereby  to  have  defeated  you  and  me: 
You,  of  your  wife;  and  me  of  my  consent; 
Of  my  consent  that  she  should  be  your  wife."1 

In  everything  that  relates  to  the  domestic  relations  the 
English  common  law  has  a  great  superiority  over  the  law 
of  ancient  Greece' and  Rome.  Under  the  law  of  ancient 
Greece  and  Rome,. the  parental  power  continued  not  only 
during  the  child's  minority,  but  during  its  entire  life. 
The  child  could  not  marry  without  the  consent  of  the 
parent  ;2  whatever  he  acquired,  he  acquired  for  the  benefit 
of  the  parent,  and,  in  fact,  the  child  was  regarded  by  the 


The  Fool,  in  King  Lear,  speaks  of  the  "breath  of  an  unfee'd 
lawyer."     (Act  I,  Scene  IV.) 

Lucrece,  in  her  complaint  to  Opportunity,  which  accomplished 
her  ruin,  said: 

"When  truth  and  virtue  have  to  do  with  thee, 
A  thousand  crosses  keep  them  from  thy  aid: 
They  buy  thy  help,  but  Sin  ne'er  gives  a  fee."     (911,  913.) 
In  Venus  and  Adonis,  the  following  occurs:     "'Good   night,' 
quoth  she;   and,  ere  he  says,  'Adieu,'  The  honey  fee  of  parting 
tender'd  is."     (537,  538.) 
The  Poet  concludes,  on  Venus  lost  plea  to  Adonis: 
"But  all  in  vain;  good  queen,  it  will  not  be: 
She  hath  assay'd  as  much  as  may  be  proved; 
Her  pleading  hath  deserved  a  greater  fee."  (607,  609.) 

Referring  to  Southampton's  freedom  from  the  Tower,  the  CXX 
Sonnet   proceeds: 

"But  that  your  trespass  now  becomes  a  fee; 
Mine  ransoms  yours,  and  yours  must  ransom  me."     (13,  14.) 

1  Midsummer  Night's  Dream,  Act  IV,  Scene  II. 

2  St.  John's  History  of  Manners  &  Customs  of  Ancient  Greece, 
120-125;  Voyage  du  Anarcharis  en  Grece,  iii,  c.  26;  Taylor's  Ele- 
ments of  Civil  Law,  395,  403. 


MIDSUMMER  NIGHT'S  DREAM.  85 

law,  rather  as  property  of  the  parent,  than  in  the  light 
of  a  rational  human  being.1 

In  ecclesiastic  law,  in  England,  the  want  of  the  parent's 
consent  to  the  marriage  of  a  child  was  impedimentum 
impeditivum,  or  such  an  impediment  as  threw  an  obstruc- 
tion in  the  way  of  the  celebration  of  the  marriage,  but  it 
was  not  an  impedimentum  dirimens,  or  such  an  impedi- 
men  as  would  avoid  a  marriage  once  solemnized.2  At 
common  law,  in  England,  the  marriage  of  infants  even, 
provided  they  had  arrived  at  years  of  consent,  was  held 
to  be  valid,  as  great  mischiefs  were  found  to  grow  out  of 
the  rule  that  marriages  could  be  avoided,  when  solemn- 
ized without  the  consent  of  the  parent.3 

But  in  presenting  the  rule  obtaining  in  ancient  Greece, 
the  Poet  was  right  in  making  the  consent  of  the  parent 
essential  to  a  valid  marriage  of  the  child,  so  Egeus  had  a 
right  to  claim  that  his  consent  was  essential  to  the  mar- 
riage of  his  daughter. 

Sec.  58.    Limitation  of  municipal  law. — 

"Lys.     .     .     .     Our  intent  was,  to  be  gone  from  Athens, 
where  we  might  be, 
Without  the  peril  of  the  Athenian  law."4 


The  Old  Athenian,  in  Timon  of  Athens,  in  refusing  his  con- 
sent to  the  marriage  of  his  daughter  to  Lucillius,  unless  he 
brought  a  proper  marriage  portion,  said:  "Old.  Ath.  If  in  her 
marriage  my  consent  be  missing,  I  call  the  Gods  to  witness,  I 
will  choose  mine  heir  from  forth  the  beggars  of  the  world,  and 
dispossess  her  all."     (Act  I,  Scene  I.) 

Simonides,  in  Pericles,  Prince  of  Tyre,  emphasizes  the  neces- 
sity for  his  consent  to  his  daughter's  marriage,  with  Pericles, 
when  he  said: 

"Sim.     .     .     .     Will  you,  not  having  my  consent,  bestow, 
Your  love  and  your  affections  on  a  stranger?" 

(Act  II,  Scene  V.) 

*2   Kent's   Comm.    (12th   ed.),   205. 

21  Bishop's  Mar.  &  Div.   (4th  ed.),  293. 

3  Ante  idem. 

4  Midsummer  Night's  Dream,  Act  IV,  Scene  I. 


86  THE  LAW  IN  SHAKESPEARE. 

The  Poet  here  recognizes  that  the  validity  of  a  rule  of 
municipal  law  depends  upon  its  being  enforced  within  the 
limits  of  the  municipality  where  it  is  invoked.  The  rule 
of  law  invoked  against  Lysander  and  Hermia,  was  a  rule 
of  municipal  law,  as  distinguished  from  international  law. 
The  former  laws  apply  only  to  particular  municipalities 
or  districts,  while  the  latter  obtain,  even  among  different 
states  or  nations.1 


1  Bl.  Comm  44. 


CHAPTER  VIII. 

"LOVE'S  LABOUR'S  LOST." 

Sec.  59.  Term— Subscribing  to  Oath. 

60.  Decrees. 

61.  Penalty  of  the  Law. 

62.  Attainder. 

63.  Taken  "With  the  Manner." 

64.  "In  Manner  and  Form." 

65.  Venue  and  Offense  Charged. 

66.  Inheritance — Dowry. 

67.  Duties  of  Solicitor. 

68.  Surety. 

69.  Title. 

70.  Common — Severalty. 

71.  Crime  of  Perjury. 

72.  Denial  of  Receipt. 

73.  Specialities — Acquittances. 

74.  Apparitors — Duties  of. 

75.  Enfranchising  one. 

76.  Treason. 

77.  "Quillets"  of  the  Law. 

78.  "Statute-caps." 

78a.  Slander  dependent  upon  hearer's  attitude. 

8ec.  59.     Term — Subscribing  to  oath. — 

"King.     You  three,  Biron,  Dumain  and  Longaville, 
Have  sworn  for  three  years'  term  to  live  with  me, 
My  fellow-scholars,   and  to  keep  those  statutes, 
That  are  recorded  in  this  schedule  here : 
Your  oaths  are  past  and  now  subscribe  your  names; 
That  his  own  hand  may  strike  his  honor  down, 
That  violates  the  smallest  branch  herein : 
If  you  are  arm'd  to  do,  as  sworn  to  do, 
Subscribe  to  your  deep  oath  and  keep  it  too."1 

As  an  oath  can  only  be  administered  by  some  one  au- 
thorized to  administer  oaths,2  and  the  form  of  taking  the 
oath  is  not  here  presented,  the  Poet  purposely  accounts 
for  this  absence  by  saying  that  the  oaths  have  already  been 


Move's  Labour's  Lost,  Act  I,  Scene  I. 
a2  McLean,  Cr.  Cases,  135. 

(87) 


88  THE  LAW  IN  SHAKESPEARE. 

taken  and  the  names  are  now  but  to  be  subscribed  thereto. 
This  verse  abounds  in  proper  legal  phrases.  One  "sub- 
scribes" to  an  instrument  of  writing,  when  he  places  his 
signature  at  the  bottom  of  the  engagement  or  writing.1 
"Term,"  in  the  law  of  contracts,  is  the  space  of  time  given 
for  the  discharge  of  an  obligation.2  Statutes,  until  re- 
corded are  not  usually  enforceable,3  hence  the  rules  of 
conduct  here  are  announced  as  duly  recorded.  Indeed, 
the  statute  law,  was  understood  as  the  written  or  recorded 
laws,  to  distinguish  it  from  the  unwritten  or  unrecorded 
laws,  at  common  law.4 

Sec.  60.    Decrees. — 

"Biron.     .     .     .     Give   me  the  paper,   let  me  read  the 
same; 
And  to  the  strict'st  decrees,  I'll  write  my  name." 


"King.     We  must,  of  force,  dispense  with  this  decree, 
She  must  lie  here,  on  mere  necessity."5 

Decrees,  as  generally  understood,  are  sentences  or  judg- 
ments of  a  court  of  equity,  as  distinguished  from  a  court 
of  law,6  but  this  is  not  the  sense  in  which  the  term  is  used 
in  this  verse,  for  here  the  word  is  used  as  applying  to  a 
legislative  act,  not  to  a  judgment  of  a  court.  In  some 
countries,  acts  of  the  legislative  branch  of  Government, 
or  of  the  sovereign,  which  have  the  force  and  effect  of 
laws,  are  spoken  of  as  decrees,7  such  as  the  Berlin  and 
Milan  decrees  and  this  is  the  meaning  in  which  the  word 
is  used  here. 


1From  Latin,  sub.  under  and  scribo,  to  write. 

•Bouvier's  Law  Dictionary. 

•1  Bl.  Comm.  85,  86;   4  Coke,  76. 

*  Bouvier's  Law  Dictionary. 

"Love's  Labour's  Lost,  Act  I,  Scene  I. 

•7  Comyns  Dig.  445. 

7  Bouvier's  Law  Dictionary. 


love's  labour's  lost.  89 

Sec.  61.    Penalty  of  the  law.— 

"Biron.  (Reads)  That  no  woman  shall  come  within  a 
mile  of  my  court — And  hath  this  been   proclaim 'd  ? 

Long.     Four  days  ago. 

Biron.  Let's  see  the  penalty.  (Reads)  On  pain  of  los- 
ing her  tongue. — Who  devis'd  this? 

Long.     Marry,  that  did  I. 

Biron.     Sweet  lord,  and  why? 

Long.     To  fright  them  hence,  with  that  dread  penalty. 

Biron.     A  dangerous  law  against  gentility."1 

The  idea  is  expressed  in  this  colloquy  that  the  law  would 
not  be  effective  until  it  was  properly  proclaimed  as  a  law 
and  this,  of  course,  is  true.2  The  penalty  is  then  ad- 
verted to  and  the  avowed  purpose  is  stated  to  be  to  deter 
the  violation  of  the  rule  prescribed  by  the  edict.     This 


The  following  occurs,  in  Love's  Labour's  Lost  (Act  IV, 
Scene  III) : 

"Biron.    As  true,  we  are,  as  flesh  and  blood  can  be. 
The  sea  will  ebb  and  flow,  heaven  show  his  face; 
Young  blood  will  not  obey  an  old  decree: 
We  cannot  cross  the  cause  why  we  were  born; 
Therefore,  of  all  hands  must  we  be  foresworn." 
In  Merchant  of  Venice  (Act  I,  Scene  II)  the  effect  of  a  decree, 
contrary  to  the  inclinations  of  youth,  is  spoken  of  as  follows: 
'Tor.    The  brain  may  devise  laws  for  the  blood ;  but  a  hot  temper 
leaps  over  a  cold  decree;  such  a  hare,  is  madness,  the  youth,  to 
skip  o'er  the  meshes  of  good  counsel,  the  cripple." 

Complaining  of  his  past  treatment,  the  King  said  to  his  son,  in 
2  Henry  IV  (Act  IV,  Scene  IV):  "K.  Hen.  .  .  .  Give  that 
which  gave  thee  life  unto  the  worms;  pluck  down  my  officers; 
break  my  decrees." 

In  King  Richard  II,  in  exiling  Bolingbroke  and  Norfolk,  the 
King  said: 

"K.  Rich.    Let  them  lay  by  their  helmets  and  their  spears, 
And  both  return  back  to  their  chairs  again; 
Withdraw  with  us ;  and  let  the  trumpets  sound, 
While  we  return  these  dukes  what  we  decree." 

(Act  I,  Scene  III.) 
1  Love's  Labour's  Lost,  Act  I,  Scene  I. 

•1  Stephen,  Comm.  25;  10  Pet.  18.  A  law  not  properly  promul- 
gated or  proclaimed,  would  be  no  law.    Bouvier's  Law  Dictionary. 


90  THE  LAW  IN  SHAKESPEARE. 

is  the  object  of  all  penal  provisions,  to  deter  those  upon 
whom  the  law  is  to  operate  from  a  violation  of  its  pro- 
visions.1 But  if  the  penalty  is  too  harsh  for  the  offense 
prescribed,  it  is  not  generally,  a  good  law,  for  it  will  be 
apt  to  be  violated  and  the  penalty  dispensed  with,  hence 
Biron  concludes  that  this  harsh  provision  is  "a  danger- 
ous law." 

Sec.  62.    Attainder. — 

"Biron.     ...     I  am  foresworn  on  mere  necessity. — 
So  to  the  laws  at  large  I  write  my  name: 
And  he  that  breaks  them  in  the  least  degree, 
Stands  in  attainder  of  eternal  shame."2 

"Attainder"  was  that  extinction  of  civil  rights  and 
capacities  which  took  place,  at  common  law,  whenever  a 
person  who  had  committed  treason  or  other  felony,  re- 
ceived the  sentence  for  his  crime.3  Attainder  was  either 
by  confession,  in  court;  by  verdict,  or  by  process  of  out- 
lawry, in  case  of  his  flight.4  The  effect  of  an  attainder 
was  that  the  felon's  estate,  real  and  personal,  was  for- 
feited ;  his  blood  was  corrupted,  so  that  nothing  passed  by 
inheritance,  to,  from  or  through  him,  and  he  was  unable 
to  sue  to  enforce  any  right  in  a  court  of  justice.5  Of 
course  the  player  spoke  extravagantly  in  the  use  of  this 
term  as  a  penalty  for  the  offense  considered. 


The  King,  in  Hamlet,  mentions  "How  dangerous  is  it,  that  this 
man  goes  loose;"  hut  he  concludes,  "Yet  must  not  we  put  the 
strong  law  on  him."     (Act  IV,  Scene  III.) 

1lKent's  Comm.  467;   1  Bl.  Comm.  88;    1  Comyns  Dig.  444. 

2  Love's  Labour's  Lost,  Act  I,  Scene  I. 

31  Bishop,  Criminal  Law,  641;   1  Stephen,  Comm.  408. 

4  Coke,  Litt.   391. 

6  6  Coke,  63a,  63b;  Coke,  Litt.  130a;  1  Bishop,  Criminal  Law, 
641;  2  Gabbett,  Criminal  Law,  538.  Attainder  is  not  known  in 
the  United  States.    4  Kent's  Comm.  413,  420. 


love's  labour's  lost.  91 

Further  on,  in  the  same  play,  Rosalind  said  to  Biron: 
"Ros.    You  must  be  purged  too,  your  sins  are  rank; 
You  are  attaint  with  faults  and  perjury; 
Therefore,  if  you  my  favor  mean  to  get, 
A  twelvemonth  shall  you  spend,  and  never  rest, 
But  seek  the  weary  beds  of  people  sick."     (Act  V,  Scene  II.) 
Replying  to  the  accusation  of  Bagot,  the  Duke  of  Aumerle  said: 
"Aum.    What  answer  shall  I  make  to  this  base  man? 
Shall  I  so  much  dishonor  my  fair  stars, 
On  equal  terms  to  give  him  chastisement? 
Either  I  must  or  have  mine  honour  soiled, 
With  the  attainder  of  his  slanderous  lips."  (King  Richard  II, 
Act  IV,  Scene  I.) 
Referring  to  the  father  of  Richard  Plantagenet,  Somerset  asks 
him,  in  V  Henry  VI:     "Som.    ...     by  his  treason  stand'st  not 
thou  attainted,  Corrupted  and  exempt  from  ancient  gentry?" 

And  Plantagenet  replies:  "Plan.  .  .  My  father  was  at- 
tached, not  attainted;  condemn'd  to  die  for  treason,  but  no 
traitor."     (Act  II,  Scene  IV.) 

Somerset  flouts  the  alleged  treason  of  his  father  in  the  face  of 
Richard  Plantagenet,  in  1'  Henry  VI,  as  follows:  "Som.  .  . 
His  trespass  yet  lives  guilty  in  thy  blood,  And,  till  thou  be 
restor'd  thou  art  a  yeoman."     (Act  II,  Scene  IV.) 

Mortimer,  referring  to  Richard  Plantagenet's  attainder,  in  1' 
Henry  VI,  said:  "And  even  since  then  hath  Richard  been  obscur'd, 
Deprived  of  honour  and  inheritance."     (Act  II,  Scene  V.) 

In  remitting  the  attainder  of  Richard  Plantagenet,  Henry  VI 
said:  "K.  Hen.  .  .  Therefore,  my  loving  lords,  our  pleasure 
is,  That  Richard  be  restored  to  his  blood."     (Act  III,  Scene  I.) 

King  Henry  tells  Suffolk,  in  1'  Henry  VI:  "K.  Hen.  .  .  My 
tender  youth  was  never  yet  attaint,  With  any  passion  of  inflaming 
love."     (Act  V,  Scene  V.) 

In  2'  Henry  VI,  Hume  is  made  to  say  of  the  Duchess  of  Gloster: 
"Hume.  Hume's  knavery  will  be  the  duchess'  wreck;  And  her 
attainture  will  be  Hume's  fall."     (Act  I,  Scene  II.) 

The  vicious  Queen  Margaret  is  made  to  say  to  the  duke  of 
Gloster,  on  the  arrest  of  his  wife:  "Q.  Mar.  Gloster,  see  here  the 
tainture  of  thy  nest;  And  look,  thyself  be  faultless,  thou  wert 
best."     (2'  Henry  VI,  Act  II,  Scene  I.) 

The  duke  of  Gloster  said  to  his  unfortunate  wife,  in  2'  Henry 
VI:  "Glo.  .  .  Ah,  Nell,  forbear;  thou  aimest  all  awry;  I 
must  offend,  before  I  be  attainted."     (Act  II,  Scene  IV.) 


92  THE  LAW  IN  SHAKESPEARE. 

Sec.  63.    Taken  with  the  manner. 

"Cost.     The  matter  is  to  me  sir,  as  concerning  Jaquenetta. 
The  manner  of  it  is,  I  was  taken  with  the  manner."1 

These  lines  refer  to  an  arrest  upon  "hue  and  cry," 
when  the  thief  is  found  with  the  stolen  property  on  his 
person.  %  Of  this  term  Halliwell  quotes  from  Termes  de  la 
Ley:  "Maynour  is  when  a  thief  has  stolen  and  is  fol- 
lowed with  Hue  and  Cry,  and  taken,  having  that  upon 
him,  which  he  stole,  and  it  is  called  Maynour.  And  so 
we  used  to  say,  when  we  find  one  doing  of  an  unlawful 
act,  that  we  took  him  with  the  Maynour,  or  Manner."2 

The  Scrivener,  in  presenting  the  indictment,  after  Hasting's 
death,  in  King  Richard  III,  is  made  to  say:  "Scriv.  And  yet 
within  these  five  hours,  Hastings  liv'd,  Untainted,  unexamined, 
free,  at  liberty."     (Act  III,  Scene  VI.) 

Dissembling,  on  seeing  Lord  Hasting's  head,  Richard  II  said,  in 
King  Richard  III':  "Glo.  So  smooth  he  daub'd  his  vice,  with 
show  of  virtue,  That,  his  apparent  open  guilt  omitted — I  mean  his 
conversation  with  Shore's  wife — He  lived  from  all  attainder  of 
suspect."     (Act  III,  Scene  V.) 

Speaking  of  the  Cardinal's  act  in  the  trial  of  Buckingham,  for 
treason,  a  gentleman  is  made  to  say:  "Gent.  'Tis  likely,  by  all 
conjectures;  First,  Kildare's  attainder,  then  deputy  of  Ireland." 
(Act  II,  Scene  I.) 

Alexander  tells  Cressida,  in  Troilus  and  Cressida,  speaking  of 
Troilus:  "Alex.  .  .  there  is  no  man  hath  a  virtue  that  he 
hath  not  a  glimpse  of;  nor  any  man  an  attaint,  but  he  carries 
some  stain  of  it."     (Act  I,  Scene  II.) 

Addressing  his  friend,  in  the  LXXXVIII'  Sonnet,  the  Poet  said: 
"Upon  thy  part  I  can  set  down  a  story 
Of  faults  conceal'd,  wherein  I  am  attainted."     (6,  7.) 

1  Love's  Labour's  Lost,  Act  I,  Scene  I. 

*  See  Tomlin's  Law  Dictionary;  Bouvier's  Law  Dictionary. 

For  an  interesting  case,  where  a  thief  was  taken  with  the' 
Manour,  see  Year  Book  30  and  31  Edw.  1  (Hor.  Ed.  1863),  p.  512, 
where  a  woman  had  committed  burglary  and  larceny  and  was 
taken  with  the  "mainour"  and  was  brought  before  the  justices, 
with  the  "mainour." 


love's  labour's  lost.  93 

Sec.  64.    "In  manner  and  form." — 

"Cost.  In  manner  and  form  following,  sir;  all  those 
three:  I  was  seen  with  her  in  the  manor  house,  sit- 
ting with  her  upon  the  form  and  taken  following 
her  into  the  park ;  which,  put  together  is,  in  manner 
and  form  following."1 

These  terms  are  used  not  only  in  indictments,  in  set- 
ting out  the  charging  part  of  the  offense  committed,  at 
common  law,  but  also  in  other  formal  legal  documents. 
The  play  upon  the  formal  words,  in  this  instance,  is  by 
the  use  of  another  legal  term,  "manor  house."  In  the 
English  law,  "Manor"  signified  a  tract  of  land  originally 
granted  by  the  King  to  a  person  of  rank,2  part  of  which 
(terrae  tenementales) ,  was  given  by  the  "lord  of  the 
manor,"  to  his  followers  or  vassals,  and  the  rest  was  re- 
tained by  him  under  the  name  of  his  demesnes,  or  terrae 


In  Henry  IV,  (Act  II,  Scene  IV)  Prince  Hal  thus  refers  to 
Falstaff's  having  been  taken  with  the  manner: 

"P.  Hen.  O  villain,  thou  stolest  a  cup  of  sack  eighteen  years 
ago  and  wert  taken  with  the  manner,  and  ever  since  thou  hast 
blushed  extempore." 

Manner,  is  no  doubt  from  the  French  word  manier,  and  wheri 
used  as  it  is  in  this  verse  means  about  the  same  that  the  words 
imply  to  arrest  a  thief  and  find  the  stolen  goods  on  his  person. 
"Taken  with  the  manner,"  means  that  he  was  arrested  with  the 
goods  upon  his  person  and  as  "recent  possession  of  stolen  prop- 
erty" raises  a  strong  implication,  in  law,  of  the  guilt  of  the  person 
in  whose  possession  the  stolen  property  is  found,  so  to  be  "taken 
with  the  manner"  would  be  presumptive  evidence  of  the  guilt  of 
Falstaff  in  the  instance  referred  to. 

Commenting  upon  the  right  of  arrest  of  those  criminals  who 
were  taken  in  the  act,  Lord  Coke  said:  "being  taken  with  the 
manner,  that  is,  with  the  thing  stolen  in  his  hand,  which  Bracton 
and  Britton  call  factum  manifestum  (Bracton  lib.  Ill,  fol.  12; 
Britton,  fol.  22),  and  so  felons,  openly  known  and  notorious,  they 
were  not  bailable."     (2  Inst.  189.) 

And  see  II  Reeve's  History  Eng.  Law,  p.  418. 

1  Love's  Labour's  Lost,  Act  I,  Scene  I. 
•Coke,  Litt.  58,  108;  2  Rolle,  Abr.  121. 


94  THE  LAW  IN  SHAKESPEARE. 

dominicales.  The  whole  fee  was  called  a  lordship,  or 
barony,  and  the  court  appendant  to  the  "manor  house77 
was  called  the  court-baron.1  No  new  "manors77  were 
created  in  England  after  the  enactment  of  the  statute 
Quia  Emptores,  prohibiting  subinfeudation.2 

Sec.  65. — Venue  and  offense  charged. — 

"King  (Reads).  The  time  when?  About  the  sixth  hour; 
when  beasts  most  graze,  birds  best  peck,  and  men  sit 
down  to  that  nourishment,  which  is  called  supper. 
So  much  for  the  time  when.  Now  for  the  ground 
which ;  which,  I  mean,  1  walked  upon ;  it  is  ycleped 
thy  park.  Then  for  the  place  where ;  where,  I  mean, 
I  did  encounter  that  .obscene  and  most  preposterous 
event,  that  draweth  from  my  snow-white  pen  the 
ebon-coloured  ink,  which  here  thou  viewest  behold- 
est,  surveyest  or  seest;  but  to  the  place  where;  It 
standeth  north-north-east  and  by  east  from  the  west 
corner  of  thy  curious  knotted  garden;  there  did  T 
see  that  low  spirited  swain,  that  base  minnow  of  thy 
mirth,  sorted  and  consorted,  contrary  to  thy  estab- 
lished proclaimed  edict  and  continental  cannon, 
etc.773 

This  letter  follows,  in  a  satirical  and  ridiculous  way, 
the  charging  part  of  a  common  law  indictment,  in  setting 
forth  the  venue  or  the  place  where  the  offense  was  com- 
mitted and  winds  up,  by  charging  the  offense  contrary 
to  the  form  of  the  "established  proclaimed  edict,77  like  an 
indictment  ended,  in  charging  the  commission  of  the  of- 
fense "contrary  to  the  form  of  the  statute,77  etc.4  At  com- 
mon law,  in  setting  forth  an  offense,  some  certain  place 


1  Bouvier's    Law    Dictionary. 

2  This  statute  was  passed  in  1290.  Tiedeman,  R.  P.  (3  Ed.), 
Sec.  23;  1  Washburn,  R.  P.  30. 

3  Love's  Labour's  Lost,  Act  I,   Scene   I. 

4  These  legal  terms  were  used  as  terms  of  art,  at  common  law, 
for  which  none  others  were  found  to  so  fully  fill  the  same  office, 
in  charging  offenses  known  to  the  law.  4  Bl.  Comm.  301;  1 
Chitty,  Cr.  Law,  230;  Hawkins,  PI.  Cr.  b,  2,  c,  25,  Sec.  57. 


love's  labour's  lost.  95 

had  to  be  alleged  as  the  place  of  occurrence  of  each  tra- 
versable fact.1  The  place  was  set  forth  with  great  de- 
tail, as  in  this  form  used  by  the  Poet,  or  by  use  of  similar 
legal  phrases,  to  designate  the  place,  after  which  the  of- 
fense was  charged,  as  here,  it  is  stated  that  he  "sorted  and 
consorted,"  which  is  also  charged  to  have  been  "contrary 
to  thy  established  proclaimed  edict  and  continental  can- 
non," meaning  that  it  was  "contrary  to  the  form  of  the 
statute,"  as  the  offense  would  be  charged  at  common 
law.2 

Sec.  66. — Inheritance,  Dowry. — 

"Boyet.     Now,  madam,  summon  up  your  dearest  spirits; 
Consider  who  the  king,  your  father,  sends; 
To  whom  he  sends;  and  what's  his  embassey; 
Yourself,  held  precious  in  the  world's  esteem, 
To  parley  with  the  sole  inheritor 
Of  all  perfections  that  a  man  may  owe, 
Matchless  Navarre;  the  plea  of  no  less  weight 
Than  Aquittain ;  a  dowry  for  a  queen."3 

Boyet  here  impresses  the  Princess  with  the  importance 
of  her  embassy,  by  complimenting  her  own  prowess  and 
prerogatives  and  by  emphasizing  the  no  less  royal  impor- 
tance of  the  King  of  Navarre,  to  whom  the  public  mes- 
sage from  her  father's  court,  is  borne.  Then  by  way  of 
further  suggestion  of  the  importance  of  the  mission,  it  is 
reminded  that  the  title  of  Aquittain  is  involved,  which  is, 
in  itself,  a  "dowry  for  a  queen."  An  inheritance,  is  a 
perpetuity  in  land  to  a  man  and  his  heirs,  or  the  right 
to  succeed  to  the  estate  of  a  person  who  dies  intestate.4 
Navarre  is  spoken  of  as  the  "inheritor"  of  "the  perfections 
that  a  man  may  owe,"  meaning  that  he  inherited  these 
perfections,  which  were  transmitted  to  him,  by  his  father. 
"Dowry"  was  the  wedding  portion  which  a  bride  brought 

1  Comyns  Dig.  Pleader,  c.  20. 

2  Coke,    Litt.    125. 

3  Love's   Labour's   Lost,   Act   II,   Scene   I. 

4  Littleton,  Sec.  9. 


96  THE  LAW  IN  SHAKESPEARE. 

her  husband.1     And  the  value  of  Aquittain  is  here  en- 
hanced as  being  fit  for  a  queen. 


^oke,   Litt.   31. 

King  John  is  made  to  say,  to  Phillip,  of  France:  "If  that  the 
Dauphin  there,  thy  princely  son,  Can  in  this  book  of  beauty  read, 
I  love,  Her  dowry  shall  weigh  equal  with  a  queen."  (Act  II, 
Scene  I.) 

As  an  apt  illustration  of  the  frequency  with  which  legal  terms 
are  correctly  used  by  the  Poet,  when  the  necessity  therefor  occurs, 
note  the  following  references  to  dowry,  in  Taming  Of  The  Shrew : 

"Ore.  I  had  as  lief  take  her  dowry,  with  this  condition — to  be 
whipped  at  the  high-cross  every  morning."     (Act  I,  Scene  I.) 

"Hor.  Here  is  a  gentleman,  whom  by  chance  I  met,  upon  agree- 
ment from  us  to  his  liking,  will  undertake  to  woo  curst  Katharine; 
yea,  and  to  marry  her,  if  her  dowry  please."     (Act  I,  Scene  II.) 

"Pet.  Then  tell  me — if  I  get  your  daughter's  love,  What  dowry 
shall  I  have,  with  her  to  wife?" 

"Bap.  After  my  death,  the  one-half  of  my  lands;  and,  in  posses- 
sion, twenty  thousand  crowns." 

"Pet.  And,  for  that  dowry,  I'll  assure  her  of  her  widow-hood." 
(Act  II,  Scene  I.) 

"Pet.  Your  father  hath  consented  that  you  shall  be  my  wife; 
your  dowry  'greed  on;  and  will  you,  nill  you,  I  will  marry  you." 
(Act  II,  Scene  I.) 

"Bap.  And  he,  of  both,  that  can  assure  my  daughter  greatest 
dower,  shall  have  Bianca's  love."     (Act  II,  Scene  I.) 

"Tra.  My  father  is  here  looked  for  every  day,  To  pass  assur- 
ance of  a  dower  in  marriage."     (Act  IV,  Scene  II.) 

"Bap.  And,  therefore,  if  you  say  no  more  than  this,  That  like 
a  father  you  will  deal  with  him,  And  pass  my  daughter  a  sufficient 
dower,  The  match  is  fully  made,  and  all  is  done."  (Act  IV, 
Scene  IV.) 

"Pet.  Wonder  not,  nor  be  not  grieved;  she  is  of  good  esteem, 
Her  dowry  wealthy  and  of  worthy  birth."     (Act  IV,  Scene  V.) 

"Bap.  I  will  add  unto  their  losses,  twenty  thousand  crowns; 
Another  dowry  to  another  daughter,  for  she  is  changed  as  she  had 
never  been."     (Act  V,  Scene  II.) 

In  King  John,  the  Earl  of  Pembroke  said  to  Lord  Salisbury: 
"Stay  yet,  Lord  Salisbury,  I'll  go  with  thee,  And  find  the  inheri- 


love's  labour's  lost.  97 

tance  of  this  poor  child,  His  little  kingdom  of  a  forced  grave." 
(Act  IV,  Scene  II.) 

The  Archbishop  of  Canterbury,  in  Henry  V,  said  to  the  King: 
"Cant.  .  .  in  the  book  of  Numbers  is  it  writ — When  the  son 
dies,  let  the  inheritance  descend  unto  the  daughter."  (Act  I, 
Scene  II.) 

Gloster,  speaking  of  the  offer  of  his  daughter  to  the  king,  by 
the  Earl  of  Armagnac,  in  1'  Henry  VI,  said:  "Glo.  Proffers  his 
only  daughter  to  your  grace,  in  marriage,  with  a  large  and  sump- 
tuous dowry."  Her  beauty  and  the  value  of  her  dower,  He 
doth  intend  she  shall  be  England's  queen."     (Act  V,  Scene  I.) 

Contesting  for  the  several  hands  of  their  favorites  for  the  King, 
Exeter  and  Suffolk,  in  1'  Henry  VI,  said:  "Exe.  Besides,  his 
wealth  does  warrant  liberal  dower;  While  Reignier  sooner  will 
receive,  than  give.  Suff.  A  dower,  my  lords;  disgrace  not  so 
your  king,  That  he  should  be  so  abject,  base  and  poor,  To  choose 
for  wealth  and  not  for  perfect   love."     (Act  V,   Scene   V.) 

In  2'  Henry  VI,  the  peasant,  Iden,  said:  "Iden.  This  small 
inheritance,  my  father  left  me,  Contenteth  me  and  is  worth  a 
monarchy."     (Act   IV,   Scene  X.) 

In  3'  Henry  VI,  York  asserts  title  to  the  crown,  in  the  follow- 
ing language:  "York.  'Twas  my  inheritance  as  the  earldom 
was."     (Act  I,  Scene  I.) 

The  Senators  urge  Alcibiades  to  show  mercy  and  deny  that 
crimes  are  hereditary,  in  Timon  of  Athens: 
"1  Sen.    All  have  not  offended; 

For  those  that  were,  it  is  not  square  to  take, 

On   those   that   are,  revenges;  crimes,   like   lands, 

Are  not  inherited."  (Act  V,  Scene  V.) 

Lear  asks  the  duke  of  Burgundy:  "What,  in  the  least,  Will 
you  require  in  present  dower  with  her,  Or  cease  your  quest  of 
love,"  in  discarding  his  daughter,  Cordelia.     (Act  I,  Scene  I.) 

King  Lear  before  division  of  his  property  among  his  daugh- 
ters said:  "Lear.  We  have  this  hour  a  constant  will  to  publish, 
Our  daughters  several  dowers,  that  future  strife  may  be  pre- 
vented now."     (Act  I,  Scene  I.) 

And  to  Cordelia,  he  decrees:  "Thy  truth,  then,  be  thy  dower." 
idem. 

Cleon  tells  the  Lord,  in  Pericles,  Prince  of  Tyre,  that 
"One  sorrow  never  comes,  but  brings  an  heir, 
That  may  succeed  as  his  inheritor."  (Act  I,  Scene  IV.) 


98  THE  LAW  IN  SHAKESPEARE. 

Sec.  67.    Duties   of  solicitor. — 

"Prin.     In  that  behalf,  bold  of  your  worthiness,  we  single 

As  our  best  moving,  fair  solicitor: 
Tell  him,  the  daughter  of  the  king  of  France, 
On  serious  business,  craving  quick  dispatch, 
Importunes  personal  conference  with  his  grace; 
Haste,  signify  so  much;  while  we  attend 
Like  humble  visaged  suitors,  his  high  will."1 

The  audience  was  thus  sought  by  means  of  a  solicitor. 
A  solicitor  is  a  person  whose  business  it  is  to  be  employed 
in  the  care  and  management  of  law  suits2  and  especially 
those  pending  in  the  English  court  of  chancery.  The 
solicitor,  like  the  attorney,  is  required  to  act  with  perfect 
good  faith,  toward  his  client,  or  the  suitor  that  he  repre- 
sents. Here,  the  Princess  not  only  adopted  the  solicitor 
to  state  the  necessity  for  her  audience,  but  adopted  the 
attitude  of  her  solicitor's  client,  in  that  she  and  her  asso- 
ciates, "like  humble  visaged  suitors,"  would  await  his  will. 
A  suitor,  of  course,  is  one  who  is  a  party  to  a  lawsuit;3 
the  character  of  waiting,  with  an  humble  visage,  denotes 
the  keen  perception  of  the  lawyer,  used  to  seeing  clients 
waiting  upon  the  pleasure  of  the  court,  for  no  doubt,  at 
Westminster,  many  such  could  be  seen,  in  the  Poet's  day.4 

Sec.  68.    Surety.— 

"King.     .     .     Madam,  your  father  here  doth  intimate, 
The  payment  of  a  hundred  thousand  crowns; 

Move's  Labour's  Lost,  Act  II,  Scene  I. 
2  Bouvier's  Law  Dictionary. 
•Bouvier's  Law  Dictionary. 
4 II  Reeve's  Hist.  Eng.  Law,  401,  et  sub. 

To  follow  out  the  reference  of  the  Princess'  attitude  to  a  suitor, 
in  a  court,  when  the  king  arrives,  she  said:  "Vouchsafe  to  read 
the  purpose  of  my  coming,  and  suddenly  resolve  me  in  my  suit." 
(Love's  Labour's  Lost,  Act  II,  Scene  II.) 

Desdemona  tells  Cassio,  in  Othello,  the  Moor  of  Venice:  "There- 
fore, be  merry,  Cassio;  For  thy  solicitor  shall  rather  die,  Thaa 
give  thy  cause  away."     (Act  III,  Scene  III.) 


love's  labour's  lost.  99 

Being  but  the  one-half  of  an  entire  sum, 
Disbursed  by  my  father  in  his  wars. 
But  say,  that  he,  or  we,  (as  neither  have) 
Keceived  that  sum;   yet  there  remains  unpaid, 
A  hundred  thousand  more;  in  surety  of  the  which, 
One  part  of  Aquittain  is  bound  to  us, 
Although  not  valued  to  the  money's  worth."1 

The  idea  that  the  country  of  Aquittain  could  be  bound 
to  the  King  of  Navarre,  as  a  "surety,"  is  not,  speaking  in 
strictly  legal  parlance,  a  proper  term,  but  the  sense  of 
the  suretyship  here  spoken  of  is  that  the  country  was  held 
to  indemnify  the  King  of  Navarre  against  loss  on  the  debt 
referred  to.  A  surety  is  usually  a  person  who  binds  him- 
self to  the  payment  of  a  certain  sum  of  money,  or  for 
the  performance  of  something  else,  for  another,  who  is 
already  bound  therefor.2  The  meaning  here,  of  course  is, 
that  in  lieu  of  other  indemnity,  the  title  of  the  King  of 
France,  to  Aquittain,  was  held  to  guarantee  the  King  of 
Navarre  against  loss  on  the  debt  referred  to. 


1  Love's  Labour's  Lost,  Act  II,  Scene  I. 
'Bouvier's  Law   Dictionary. 

At  the  death  of  King  John,  Prince  Henry  said: 
"Even  so  must  I  run  on  and  even  so  stop. 
What  surety  of  the  world,  what  hope,  what  stay, 
When  this  was  now  a  king,  and  now  is  clay." 

(Act  V,  Scene  VII.) 
In   King  Richard  II,  Bolingbroke,  after  his   coronation,  thus 
addresses  his  Lords: 

"Boling.    Lords,  you  that  are  here  under  our  arrest, 
Procure  your  sureties  for  your  days  of  answer." 

(Act  IV,  Scene  I.) 
In  2'  Henry  IV,  Lord  Mowbray  said,  to  Earl  of  Northumber- 
land: 

"Mow.     .     .    The  gentle  archbishop  of  York  is  up, 
With  well-appointed  powers;   he  is  a  man, 
Who  with  a  double  surety  binds  his  followers." 

(Act  I,  Scene  1.) 
In  2'  Henry  VI,  Queen  Margaret  thus  addresses  York:    "Q.  Mar. 
Call  hither  Clifford;   bid  him  come  amain,  to  say,  if  that  the 


100  THE  LAW  IN  SHAKESPEARE. 

Sec.  69.    Title.— 

"King.     But  that,  it  seems,  he  little  purposeth, 
For  here  he  doth  demand  to  have  repaid, 
A  hundred  thousand  crowns;  and  not  demands, 
On  payment  of  a  hundred  thousand  crowns, 
To  have  his  title  live  in  Aquitain."1 

A  title  is  defined  as  the  means  whereby  the  owner  of 
land  hath  the  just  possession  of  his  property.2  A  title 
enables  a  man,  by  right,  to  assert  a  property  or  owner- 
ship to  land  or  other  kind  of  property  and  to  recover  the 
possession  thereof,  if  not  in  possession.3  The  King  of 
France,  having  pledged  the  title  that  he  had  to  Aquittain, 
here  offered  on  payment  of  the  certain  sum  remaining 
unpaid,  to  accept  a  full  release  and  be  restored  to  his 
title.  If  this  offer  was  not  accepted,  he  would  assert  his 
title,  in  any  event. 

bastard    boys    of   York,    Shall    be    the    surety    for    their    traitor 
father."     (Act  V,  Scene  I.) 

The  following  occurs  between  Aenas  and  Agamemnon,  in  Troi- 
lus  and  Cressida: 

"Aena.  May  one,  that  is  a  herald  and  a  prince,  Do  a  fair 
message  to  his  kingly  ears? 

Agam.  With  surety  stronger  than  Achilles  arm,  'Fore  all  the 
Greekish  heads,  Which,  with  one  voice,  call  Agamemnon  head 
and  general."     (Act  I,  Scene  II.) 

On  the  arrest  of  Coriolanus,  Senators  and  Patricians,  stand 
surety  for  him  as  follows:  "Sen.  &  Pat.  We'll  surety  him." 
(Act  III,  Scene  I.) 

Iago  tells  Roderigo,  in  Othello: 
"Iago.    I  know  not  if't  be  true, 

But  I,  for  mere  suspicion  in  that  kind, 

Will  do,  as  if  for  surety."  (Act  I,  Scene  III.) 

Referring  to  his  friend's  love,  in  the  CXXXIV  Sonnet,  the 
Poet  said: 

"He  learned  but  surety-like  to  write  for  me, 
Under  that  bond  that  him  as  fast  doth  bind."     (7,  8.) 

Move's  Labour's  Lost,  Act  II,  Scene  I. 
'Coke,  Litt.  345;   2  Bl.  Comm.  195. 
•  Ante  idem. 


love's  labour's  lost.  101 

Sec.  70.    Common-Severalty. — 

"Mar.     Not  so,  gentle  beast; 

My  lips  are  no  common,  though  several  they  be."1 

This  is  a  play  upon  terms  familiar  to  the  student  of  real 
property.  The  speaker's  lips  are  compared  to  an  estate 
which  either  may  be  held  in  common,  or  in  severalty. 
An  estate  held  in  severalty  is  one  held  by  a  tenant  in  his 
own  right  alone,  without  any  one  else  being  joined  with 
him  during  the  continuance  of  the  estate,2  while  an  estate 
in  common  is  one  held  by  two  or  more  persons  at  the 
same  time,  although  by  several  and  distinct  titles.3  The 
right  of  easement  known  as  "common  appendant,"  which 
was  the  right  of  pasturage  annexed  to  land,  on  which  the 
owner  had  the  privilege  of  feeding  his  beasts  on  the  waste 
of  the  manor,4  is  probably  the  reference  made  in  the  use 
of  the  first  term,  from  the  preceding  verse.  This  right, 
by  usage  could  be  limited  to  some  certain  number  of  cat- 
tle, or  otherwise  to  the  number  of  cattle  owned  by  the 
owner  of  the  right.5 


The  earl  of  Salisbury,  thus  explains  to  king  Henry,  his  reasons 
for  supporting  the  title  of  York,  to  the  crown,  in  2'  Henry  VI: 
"Sal.    My  lord,  I  have  considered  with  myself, 
The  title  of  this  most  renowned  duke; 
And  in  my  conscience  do  repute  his  grace, 
The  rightful  heir  to  England's  royal  seat." 

(Act    V,    Scene    I.) 
York  claims  title  to  the  crown,  in  3'  Henry  VI,  as  follows: 
"York.    Will  you,  we  show  our  title  to  the  crown? 
If  not,  our  swords  shall  plead  it  in  the  field." 

(Act    I,    Scene    I.) 
And  Henry  replies: 
"K.  Hen.    What  title  hast  thou,  traitor,  to  the  crown? 
Thy  father  was,  as  thou  art,  duke  of  York."     idem. 

1  Love's  Labour's  Lost,  Act  II,  Scene  I. 
a2  Bl.  Comm.  179;   Tiedeman,  R.  P.    (3'  Ed.)    26,  174. 
8  2  Bl.  Comm.  191;  1  Preston,  Est.,  139. 
'6  Coke,  59;  1  Rolle,  Abr.  396. 

5  2  Dane,  Abr.  611;   2  Mood.  &  R.  205;   4  Coke  36;   Tiedeman, 
R.  P.   (3'  Ed.)   Sees.  424,  426. 


.....  • 


102  THE  LAW  IN  SHAKESPEARE. 

Sec.  71.     Crime  of  perjury. — 

"Prin.  ...  I  hear,  your  grace  hath  sworn  out  house- 
keeping ; 

Tis  deadly  sin  to  keep  that  oath,  my  lord,  and  sin  to 
break  it: 

.     .     .     .     You  will  the  sooner  that  I  were  away ; 

For  you'll  prove  perjured,  if  you  make  me  stay."1 

"Prin.     This  field  shall  hold  me ;  and  so  hold  your  vow ; 

Nor  God,  nor  I,  delight  in  perjur'd  men 

As  the  unsullied  lilly,  I  protest;     ■ 

A  world  of  torments,  though  I  should  endure, 

I  would  not  yield  to  be  your  house's  guest; 

So  much  I  hate  a  breaking  cause  to  be 

Of  heavenly  oaths,  vow'd  with  integrity 

Biron.     Thus  pour  the  stars  down  plagues  for  perjury."2 

It  is  inaccurate  to  treat  the  violation  of  the  oath  sub- 
scribed to  by  the  King  and  his  associates  as  "perjury," 
because  the  same  was  not  made  in  a  judicial  proceeding, 
in  due  course  of  justice,  which  is  and  was,  at  common  law, 
an  essential  of  the  crime.  Sir  Edward  Coke  thus  denned 
this  crime  at  common  law,  saying  that  it  is  committed 
"where  a  lawful  oath  is  administered  in  some  judicial  pro- 
ceeding or  due  course  of  justice,  to  a  person  who  swears 
wilfully,  absolutely  and  falsely,  in  a  matter  material  to 
the  issue  or  point  in  question."3  It  is  doubtful  if  the  viola- 
tion of  the  oath  subscribed  to  by  the  King  and  his  asso- 
ciates, in  this  instance  would  have  constituted  a  crime  at 
common  law,  at  all,  or,  if  so,  it  would  have  amounted  to 
the  making  of  a  false  affidavit.  But  of  course  the  Princess 
and  her  associates  aggravate  the  offense,  for  a  purpose 
and  refuse  the  invitation  to  be  a  guest  of  the  King,  so 

Move's  Labour's  Lost,  Act  II,  Scene  I. 

2  Love's  Labour's  Lost,  Act  V,  Scene  II. 

8  3  Coke  Inst.  164;  2  Bishop,  Criminal  Law,  860;  Sherwood's 
Cr.  Law,  391.  This  would  be  an  extra-judicial  oath,  or  one  taken 
without  authority  of  law.  Though  binding  in  foro  conscientia, 
such  oaths  when  violated,  would  not  render  the  person  so  violat- 
ing, liable  for  perjury. 


love's  labour's  lost.  103 

that  they  may  not  be  the  cause  of  his  violating  his  oath, 
which  is  treated  as  of  the  same  solemnity,  before  heaven, 
as  if  criminal  before  the  law.  And  Biron  concludes  that 
this  is  a  proper  punishment  for  the  offense  committed, 
before  heaven,  if  its  the  only  punishment  to  be  inflicted. 

Sec.  72.    Denial  of  receipt. — 

"Prin.     You  do  the  king,  my  father,  too  much  wrong, 
And  wrong  the  reputation  of  your  name, 
In  so  unseeming  to  confess  receipt, 
Of  that  which  hath  so  faithfully  been  paid."1 

A  receipt  is  generally  denned  to  be  a  written  acknowl- 
edgement of  the  payment  of  money,  or  of  the  delivery  and 

In  King  John,  Constance  is  made  to  say:  "Nay,  rather,  turn 
this  day  out  of  the  week;  this  day  of  shame,  oppression,  per- 
jury. .  .  .  Arm,  arm,  you  heavens,  against  these  perjur'd 
kings."     (Act  III,  Scene  I.) 

Richard  III,  after  his  dream,  before  the  battle  with  Richmond, 
exclaims: 

"-K".  Rich.    .    .    Perjury,  perjury,  in  the  highest  degree;     .    .    . 
All  several  sins,  all  us'd  in  each  degree." 

(Act   V,   Scene   III.) 
Caesar  tells  Euphronius,  in  Antony  and  Cleopatra: 
"Cces.      But  want  will  perjure  the  ne'er  touch'd  vestal." 

(Act    III,    Scene    X.) 
In  Romeo  and  Juliet   (Act  II,  Scene  II),  Juliet  tells  Romeo 
that  Jove  laughs  "at  lover's  perjuries." 

Othello  cautions  Desdemona  before  killing  her:     "Sweet  soul, 
take   heed;    Take   heed   of  perjury,   thou'rt  on  thy  death  bed." 
(Act  V,  Scene  II.) 
In  the  CLII'  Sonnet,  the  following  occurs: 
"But  why  of  two  oaths'  breach  do  I  accuse  thee, 
When  I  break  twenty:  I  am  perjured  most. 

For  I  have  sworn  thee  fair;  more  perjured  I, 
To  swear  against  the  truth  so  foul  a  lie."     (5,  6,  13,  14.) 
In  the  Passionate  Pilgrim,  occurs  the  following: 
"Did  not  the  heavenly  rhetoric  of  thine  eye, 
'Gainst  whom  the  world  could  not  hold  argument, 
Persuade  my  heart  to  this  false  perjury?"     (Ill,  1,  3.) 

1  Love's  Labour's  Lost,  Act  II,   Scene  I. 


104  THE  LAW  IN  SHAKESPEARE. 

acceptance  of  something  in  lieu  thereof.1  While  subject 
to  explanation  by  parol  evidence,  unlike  other  written 
instruments,2  reecipts  are  sometimes  useful,  as  evidence  of 
facts  collateral  to  those  things  set  forth  in  the  receipt; 
they  establish  the  payment  made  and  whatever  inference 
may  be  legally  drawn  from  the  fact  of  the  payment  made 
will  be  supported  by  the  receipt  itself.3  A  denial  of  one's 
receipt  is  like  the  denial  of  any  other  obligation  or  ac- 
knowledgment, over  one's  signature  and  hence  the  con- 
clusion of  the  Princess,  that  the  King  wronged  the  repu- 
tation of  his  name,  in  refusing  to  confess  the  receipt  of  a 
sum  that  had  "so  faithfully  been  paid." 

Sec.  73.     Specialties — Acquittances. — 

"Prin.     We  arrest  your  word: 

Boyet,  you  can  produce  acquittances, 

For  such  a  sum,  from  special  officers, 

Of  Charles,  his  father.     .... 
Boyet.    So  please  your  grace,  the  packet  is  not  come, 

Where  that  and  other  specialties  are  bound, 

Tomorrow  you  shall  have  a  sight  of  them."4 

An  acquittance,  in  the  law  of  contracts,  is  a  written 
agreement  to  discharge  a  party  from  his  engagement  to 
pay  a  given  sum  of  money.' 5  Like  a  receipt,  it  is  evidence 
of  the  payment,  but  it  differs  from  a  release,  or  specialty, 
in  that  the  latter  is  always  under  seal,6  while  an  acquit- 
tance is  not  under  seal.  A  specialty  is  a  writing  contain- 
ing some  agreement,  which  is  sealed  and  delivered.7  In 
the  sense  in  which  the  word  is  used  in  this  verse,  it  is 
a  writing  sealed  and  delivered,  which  is  given  as  evidence 

1  Bouvier's  Law  Dictionary. 
21  Pet.  C.  C.  182;    2  Johns.  N.  Y.  378. 
3 15   Johns.   N.   Y.   479. 
4  Love's   Labour's   Lost,  Act   II,   Scene   I. 
"Bouvier's  Law   Dictionary. 

ePothier,  Oblig.  n.  781;   Coke,  Litt.  212a,  273a;  3  Salk,  298;   1 
Rawle   (Pa.)   391. 
7  Bouvier's  Law   Dictionary. 


love's  labour's  LOST.  105 

of  the  payment  of  a  debt,  in  which  the  same  is  specially 
mentioned.1  Although  a  seal  may  not  be  called  for 
therein,  if  an  instrument  is  executed  with  a  seal,  it  is 
a  specialty,  while  it  is  not  a  specialty  if  the  seal  is  omit- 
ted.2 The  Princess  does  not  dignify  the  receipt  for  this 
debt,  by  placing  it  on  the  higher  plane  with  sealed  instru- 
ments, but  Boyet  recognizes  the  distinction  existing  in  the 
law  between  the  two  and  promises  on  arrival  of  the  packet, 
the  sight  of  a  sealed  instrument  acknowledging  receipt 
of  the  debt. 

Sec.  74.    Apparitors — Duties  of. — 

"Biron.     .     .     .     Dread  prince  of  plackets,  king  of  cod- 
pieces, 
Sole  imperator  and  great  general 
Of  trotting  paritors."3 

Cupid  is  here  likened  to  the  general  of  a  body  of  ap- 
paritors, whose  movements  and  actions  he  governs,  as  he 
does  those  of  other  mortals.     An  apparitor  was  an  officer 

1  Bacon's   Abr.    Obligation,    A. 

2  2  Coke,  5a;    Perkins,  129. 

Bassanio  acknowledges  his  obligation  to  Portia,  for  the  acquit- 
tance given  from  the  Jew,  in  the  following  verse:  "Most  worthy 
gentleman,  I  and  my  friend,  Have  by  your  wisdom  been  this  day 
acquitted,  Of  grievous  penalties;  in  lieu  whereof,  Three  thousand 
ducats  due  unto  the  Jew,  We  freely  cope  your  courteous  pains 
withal."     (Merchant  of  Venice,  Act  IV,  Scene  I.) 

In  Taming  of  the  Shrew  (Act  II,  Scene  I),  Petruchio  is  made 
to  say: 

"Let  specialties  be  therefore  drawn  between  us, 
That  covenants  may  be  kept,  on  either  hand." 

A  Lord,  in  Timon  of  Athens,  speaking  of  his  generosity,  said: 
"2  Lord.  .  .  no  gift  to  him,  but  breeds  the  giver  a  return 
exceeding  all  use  of  quittance."     (Act  I,  Scene  I.) 

And  the  King  tells  Laertes,  in  Hamlet:  "Now  must  your 
conscience  my  acquittance  seal,  And  you  must  put  me  in  your 
heart  for  friend."     (Act  IV,  Scene  VII.) 

"Love's  Labour's  Lost,  Act  III,  Scene  I. 


106  THE   LAW  IN  SHAKESPEARE. 

of  an  ecclesiastical  court,  whose  duty  it  was  to  serve  cita- 
tions and  execute  such  similar  process  of  the  court.1  In 
these  courts  citations  were  most  frequently  issued  for 
offenses  against  chastity  and  these  officers  were  thus  called 
upon  often  to  serve  process  in  these  offenses  prompted  by 
Cupid.  Hence,  the  reference,  to  the  God  of  Love,  as  the 
general  of  this  special  class  of  officers.2 

Sec.  75.    Enfranchising  one. — 

"Arm.     Sirrah  Costard,  I  will  enfranchise  thee. 

Cos.  0,  marry  me  to  one  Frances :  I  smell  some  V envoy, 
some  goose,  in  this. 

Arm.  By  my  sweet  soul,  I  mean,  setting  thee  at  liberty, 
enfreedoming  thy  person;  thou  wert  immured,  re- 
strained, captivated,  bound."3 

As  explained  by  the  players  in  this  verse  the  word  "en- 
franchise" in  the  law,  literally  means  to  set  free.4  En- 
franchisement is  giving  freedom  to  a  person,  hence  a 
citizen  of  London  is  said  to  be  enfranchised.  And,  a^ 
common  law,  a  villain  was  said  to  be  enfranchised  when 
he  had  obtained  his  freedom  from  his  lord  paramount,  un- 
der the  land  tenure  law.5  Being  the  opposite  of  "im- 
mured, restrained,"  etc.,  the  Poet  expresses  the  legal  mean- 
ing of  the  term  as  it  is  understood  in  the  law. 


1Bouvier's  Law  Dictionary. 

2Rolfe's   Love's   Labour's   Lost,    p.    176,    notes. 

8  Love's   Labour's   Lost,  Act   III,   Scene   I. 

4Bouvier's  Law  Dictionary. 

5 II  Coke,  91. 

In  Antony  and  Cleopatra,  Cleopatra  thus  addresses  Antony: 
lCleo.    .    .     Or,  who  knows, 

If  the  scarce-bearded  Caesar  have  not  sent 

His  powerful  mandate  to  you,  Do  this,  or  this; 

Take  in  that  kingdom,  and  enfranchise  that; 

Perform' t,  or  else  we  damn  thee:'  (Act  I,  Scene  I.) 

In  Julius  Caesar,  before  the  assassination,  Cassius  is  made  to 


love's  labour's  lost.  107 

Sec.  76.    Treason.— 

"Biron.     To  fast, — to  study, — and  to  see  no  woman, 
Flat  treason  'gainst  the  kingly  state  of  youth."1 

Treason,  in  the  law,  implies  a  betrayal,  or  breach  of 
allegiance,  amounting  to  treachery,2  hence  the  conclusion 
that  to  study  and  to  fast  "and  to  see  no  woman,"  is  a 
course  so  inconsistent  with  the  primary  obligations  of 
youth,  as  to  amount  to  "flat  treason."  The  overt  act  of 
making  war  against  a  country  to  which  allegiance  is  due 
from  the  person  raising  arms,  is  an  act  of  treason,3  and 
this  course  of  conduct  is  so  at  war  with  youth,  that  it 
could  also  be  considered  treason,  for  this  reason,  as  well. 


"Cas.    Pardon,  Caesar;    Caesar,   pardon; 

As  low  as  to  thy  foot  doth  Cassius  fall, 
To  beg  enfranchisement  for  Publius  Cimber." 
Having  been  banished  from  Rome  Publius  Cimber  lost  all  his 
rights  and  privileges  as  a  citizen,  of  Rome  and  Brutus  and 
Cassius  begged  Caesar  not  only  to  admit  him  to  a  full  pardon,  but 
to  likewise  restore  him  to  the  privileges  of  his  citizenship,  or 
to  enfranchise  him.     (Julius  Caesar,  Act  III,  Scene  I.) 

Move's  Labour's  Lost,  Act  IV,  Scene  III. 

2  4  Shars.  Bl.  Comm.  75. 

3  2  Chitty,  Cr.  Law,  60-102;    3  Story,  Const.  39. 

In  King  Richard  II,  the  Duke  of  Norfolk,  replies  to  Boling- 
broke : 

"Nor.    .     .    First,  the  fair  reverence  of  your  highness  curbs  me, 
From  giving  reins  and  spurs  to  my  free  speech; 
Which  else  would  post,  until  it  had  return'd 
These  terms  of  treason  doubled  down  his  throat." 

(Act  I,  Scene  I.) 

And  King  Richard  II,  speaking  of  Bolingbroke,  said: 
ilK.   Rich.     Tell   Bolingbroke    (for   yond',   methinks,   he   is,) 
That   every   stride   he   makes   upon   my   land, 
Is  dangerous  treason."  (Act  III,  Scene  III.) 

The  Earl  of  Worcester,  is  quoted  as  saying,  in  1'  Henry  IV: 
"Wor.  .  .  Suspicion  shall  be  all  stuck  full  of  eyes:  For  treason 
is  but  trusted  like  the  fox."     (Act  V,  Scene  II.) 


108  THE  LAW  IN  SHAKESPEARE. 

Speaking  of  the  treason  and  attempt  to  kill  him,  Henry  V, 
said:  "K.  Hen.  .  .  Treason  and  murder,  ever  kept  together, 
as  two  yoke-devils  sworn  to  either's  purpose,  working  so  grossly 
in  a  natural  cause,  that  admiration  did  not  whoop  at  them:  but 
thou,  'gainst  all  proportion  did  bring  in,  wonder,  to  wait  on 
treason,  and  on  murder."     (Act  II,  Scene  II.) 

Speaking  to  the  traitors,  who  conspired  to  kill  him,  Henry  V, 
said:  "K.  Hen.  But  he,  that  temper'd  thee,  bade  thee  stand 
up,  gave  thee  no  instance  why  thou  should'st  do  treason,  unless 
to  dun  thee  with  the  name  of  traitor."     (Act  II,  Scene  II.) 

Somerset  asks  Richard  Plantagenet,  in  1'  Henry  VI:  "Som.  .  . 
Was  not  thy  father,  Richard,  earl  of  Cambridge,  for  treason 
executed  in  our  late  king's  days?"     (Act  II,  Scene  IV.) 

Talbot,  before  Rouen,  in  1'  Henry  VI,  is  made  to  say:  "Tal. 
France  thou  shalt  rue  this  treason  with  thy  tears,  if  Talbot  but 
survive  thy  treachery."     (Act  III,  Scene  II.) 

In  2'  Henry  VI,  the  king  resents  the  idea  that  the  duke  of 
Gloster  was  guilty  of  treason,  in  the  following  language:  "K. 
Hen.  .  .  Our  kinsman,  Gloster  is  as  innocent  From  meaning 
treason  to  our  royal  person,  As  is  the  sucking  lamb,  or  harmless 
dove."     (Act  III,  Scene  I.) 

Suffolk  said  to  Gloster,  in  2'  Henry  VI:  "Suff.  Nay,  Gloster, 
know,  that  thou  art  come  too  soon,  Unless  thou  wert  more  loyal 
than  thou  art:  I  do  arrest  thee  of  high  treason."  (Act  III, 
Scene  I.) 

In  attempting  to  make  Gloster  the  instigator  of  his  wife's 
treason,  Suffolk  said,  in  2'  Henry  VI:  "Stiff.  .  .  Smooth  runs 
the  water  where  the  brook  is  deep;  And  in  his  simple  show,  he 
harbors  treason.  The  fox  barks  not,  when  he  would  steal  the 
lamb."     (Act  III,  Scene  I.) 

Warwick  says  of  Clarence,  after  he  quit  his  forces,  in  3'  Henry 
VI:  "War.  O,  passing  traitor,  perjur'd  and  unjust."  (Act  V, 
Scene  I.) 

Speaking  of  the  alleged  treason  of  Buckingham,  King  Henry 
VIII,  is  made  to  say:  fiK.  Hen.  He  is  attach'd;  call  him  to 
present  trial;  if  he  may  find  mercy  in  the  law,  'tis  his;  if  none, 
let  him  not  seek't  of  us;  By  day  and  night,  he's  traitor  to  the 
height."     (Act  I,  Scene  II.) 

In  his  attempt  to  prevent  a  ratification  of  the  peace  treaty 
closed  by  Coriolanus,  with  Rome,  Aufidius  tells  the  citizens: 
"Auf.  Read  it  not,  noble  lords;  But  tell  the  traitor,  in  the  high- 
est degree,  he  hath  abus'd  your  powers."     (Act  V,  Scene  V.) 


love's  labour's  lost.  109 

Sec.  77.    Quillets  of  the  law.— 

"Long.     0,  some  authority  how  to  proceed, 

Some  tricks,  some  quillets,  how  to  cheat  the  devil."1 

"Quillet,"  is  no  doubt  derived  from  quidlibet,  meaning 
what  you  please.  A  subtle,  nice  point  of  law,  is  referred 
to  as  a  "quillet"  and  the  term  is  used  as  a  synonym  for 
quibble.2  The  thought  of  the  player  is  that  the  viola- 
tion of  the  oath  was  without  excuse  and  unless  by  some 
trick,  or  quibble,  they  could  avoid  it,  the  devil  would  be 
rewarded  for  their  transgression.  Of  course  a  "quillet" 
or  quibble3  is  generally  a  cavil  raised  without  necessity 
and  it  may  be  doubted,  from  a  professional  standpoint,  if 
any  lawyer  is  justified  in  causing  such  questions,  in  an 
argument. 

The  king  tells  his  wife,  in  Hamlet,  in  regard  to  Laertes  threats: 
"Let  him  go,  Gertrude;   do  not  fear  our  person; 
There's  such  divinity  doth  hedge  a  king, 
That  treason  can  but  peep  to  what  it  would, 
Acts  little  of  his  will."  (Act  IV,  Scene  V.) 

Referring  to  the  pure  Lucrece,  and  Tarquin's  attack  upon  her 
chastity,   the   Poet  said,   in  The   Rape   of  Lucrece: 
"The  dove  sleeps  fast  that  this  night-owl  will  catch: 
Thus  treason  works,  ere  traitors  be  espied."     (360,  361.) 

1  Love's  Labour's  Lost,  Act  IV,  Scene  III. 

2  Webster's  Dictionary. 

3Bouvier's  Law  Dictionary.  Mr.  Bouvier  says:  "No  justly 
eminent  member  of  the  bar  will  resort  to  a  quibble  in  his  argu- 
ment. It  is  contrary  to  his  oath,  which  is  to  be  true  to  the  court, 
as  well  as  to  his  client;  and  bad  policy,  because  by  resorting 
to  it,  he  will  lose  his  character  as  a  man  of  probity." 

Warwick,  in  replying  to  Somerset's  request  to  judge  between 
himself  and  Richard  Plantagenet,  in  1'  Henry  VI,  said: 
"War.     .     .     I  have,  perhaps,  some  shallow  spirit  of  judgment; 

But  in  these  nice,  sharp  quillets  of  the  law, 

Good  faith,  I  am  no  wiser  than  a  daw."  (Act  II,  Scene  IV.) 

Suffolk  thus  urges  the  death  of  the  good  Gloster,  in  2'  Henry  VI: 
"Sufi.     .     .     And  do  not  stand  on  quillets,  how  to  slay  him: 

Be  it  by  gins,  by  snares,  by  subtlety, 

Sleeping  or  waking,  'tis  no  matter  how, 

So  he  be  dead,  for  that  is  good  deceit. "  (Act  III,  Scene  I.) 


110  THE  LAW  IN  SHAKESPEARE. 

Sec.  78.    Statute-caps. — 

"Rosaline.     Well,  better  wits  have  worn  plain  statute-caps. 
But  will  you  hear?  the  king  is  my  love  sworn."1 

During  the  reign  of  Queen  Elizabeth,  it  was  not  infre- 
quent that  laws  were  passed  ostensibly  for  the  betterment 
of  the  general  class  of  citizens  but  really  favorable  to  some 
particular  class.  In  the  year  1571  an  act  of  Parliament 
was  passed  in  the  interest  of  the  trade  of  cappers,  which 
required  all  citizens,  other  than  the  nobility,  and  those 
excepted,  to  wear  woolen  caps  on  Sundays  and  holidays, 
under  the  pain  and  penalties  of  the  statute.2 

As  this  law  only  required  the  citizens  or  common  people 
to  wear  woolen  caps,  the  meaning  is  plain,  that  better 
wits  could  be  found  among  the  plain  people  than  the 
King  and  his  followers. 

Timon  of  Athens,  said,  "Tim.  Crack  the  lawyer's  voice, 
That  he  may  never  more  false  titles  plead,  Nor  sound  his  quillets 
shrilly."     (Act  IV,  Scene  III.) 

In  Hamlet,  when  the  Prince  comes  upon  the  grave  diggers  and 
he  talks  of  the  skull  of  the  supposed  lawyer,  he  speaks  of  "his 
quiddits,  his  quillets,  his  cases,  his  tenures,  and  his  tricks." 
(Act  V,  Scene  I.) 

In  the  controversy  with  the  Clown,  in  Othello,  the  Moor  of 
Venice,  Cassio  is  made  to  say:  "Pr'ythee,  keep  up  thy  quillets." 
(Act  III,  Scene  I.) 

1  Love's  Labour's  Lost,  Act  V,  Scene  II. 

2V  Reeve's  History  English  Law,  238;  Rolfe's  Love's  Labour's 
Lost,  p.  205,  notes. 


love's  labour's  lost.  110a 

Bee.  78a.    Slander  dependent  upon  hearer's  attitude.— 

"Rosaline.  A  jest's  prosperity  lies  in  the  ear 
Of  him  that  hears  it,  never  in  the  tongue 
Of  him  that  makes  it. ' n 

This  philosophy  of  the  Poet,  in  which  he  truthfully  con- 
cludes that  the  success  of  a  jest  is  dependent  more  upon 
its  reception  by  the  hearer  than  upon  the  delivery  of  the 
speaker,  has  been  used  by  courts  and  lawyers  in  libel 
and  slander  cases,  to  illustrate  the  necessity  of  a  willing 
ear  to  add  prosperity  to  a  slander.  Of  course  the  pros- 
perity of  a  slander  suit  is  almost  wholly  dependent  upon 
the  attitude  of  the  hearer  of  the  slander,  because  words 
that  might  be  slanderous,  per  se,  when  spoken  into  the 
ear  of  one  who  does  not  apply  them  as  charging  the  com- 
plainant with  moral  turpitude  or  wrong-doing,  will  not 
lead  to  a  successful  termination  of  the  suit,  unless  actu- 
ally re-told  as  uttered,  or  in  such  manner  as  to  constitute 
a  valid  cause  of  action,  at  law,  hence,  the  prosperity  of  a 
slander,  like  "a  jest's  prosperity,  lies  in  the  ear  of  him 
that  hears  it,"  and  if  it  is  not  heard  by  one  who  repeats 
it  in  such  manner  as  to  charge  some  moral  turpitude  or 
wrong-doing  to  the  one  of  whom  the  words  were  spoken, 
then  the  suit  would  fail,  regardless  of  the  words  actually 
used  by  "the  tongue  of  him  that  makes  it."2 

1  Love's  Labour's  Lost,  Act.  V,  Scene  II. 

"This  application  of  these  lines  is  made  by  Judge  Lamm,  of 
the  Supreme  Court  of  Missouri,  in  the  recent  case  of  Diener  vs. 
Chronicle  Publishing  Co.,  230  Mo.  629,  wherein  the  court  said: 

"It  was  happily  said  by  Goode,  J.,  in  a  case  on  which  I  cannot 
put  my  finger,  that  in  this  aspect  a  libel  or  slander  is  like  unto  a 
jest,  i.  e.,  the  prosperity  of  each  lies  in  the  ear  of  the  hearer— 
thus  hitching  the  gravity  of  the  law  to  the  car  of  the  light  philos- 
ophy of  Rosaline: 

"A  jest's  prosperity  lies  in  the  ear 
Of  him  who  hears  it,  never  in  the  tongue 
Of  him  that  makes  it." 

— Love's  Labour's  Lost,  Act  V,  Scene  2. 


110b  THE  LAW  IN  SHAKESPEARE. 

In  other  words,  since  a  slander  is  an  injury  to  a  per- 
son's character  and  reputation  caused  by  spoken  words, 
the  slander  must  always  be  communicated  to  a  third  per- 
son and  the  existence,  or  non-existence  of  the  offense  de- 
pends entirely  upon  the  manner  in  which  the  words  are 
repeated  by  the  person  to  whom  they  were  communicated. 

It  is  difficult  to  define  just  what  kinds  of  words  are 
actionable,  but,  in  general,  whatever  imputes  disgraceful, 
fraudulent  or  dishonest  conduct  or  tends  to  make  one  ap- 
pear contemptible,  in  his  private  relations,  or  to  be 
shunned  by  his  friends  or  acquaintances,  is  a  slander. 
Words  imputing  a  crime  or  an  indictable  offense,  or  a 
contagious  disease,  are  slanderous.  Words,  to  be  action- 
able in  themselves,  without  proof  of  special  damage,  must 
impute,  according  to  Heard,  "the  commission  of  a  crime, 
involving  moral  turpitude,  and  which  is  punishable  by 
law." 

Words  spoken  of  one  in  office,  which  cause  the  loss  of 
the  office,  or  which  impute  the  want  of  ability  or  capacity 
in  one's  business,  or  attribute  a  disease  to  one,  which 
renders  him  unfit  for  society,  are  actionable,  without 
proof  of  special  damage. 

Unless  the  words  are  of  this  character,  however,  special 
damage  must  be  proved,  to  furnish  a  valid  cause  of 
action;  the  words  must  not  have  been  in  the  nature  of  a 
privileged  communication  and  they  must  have  been 
uttered  without  legal  cause. 

Epithets  which  cause  no  special  damage,  such  as  merely 
calling  a  man  a  swindler,  a  scoundrel,  rogue,  gambler  or 
liar,  are  not  actionable.  But  words  imputing  gross  ignor- 
ance or  misconduct  affecting  one's  trade  or  profession 
are  held  to  be  actionable  without  proof  of  special  dam- 
ages, for  to  call  a  man  a  "bankrupt  merchant,"  or  a 
"quack  doctor,"  or  the  like,  is  to  injure  him  in  his  trade 
or  profession,  and  such  words  furnish  a  cause  of  action. 


CHAPTER  IX. 

THE   MERCHANT   OP   VENICE." 


i.  79. 

Warranty. 

80. 

Breach  of  Bond — Penalty  for. 

81. 

Sealing  written  instrument. 

82. 

Extorting  evidence  upon  the  Rack. 

82a. 

Tainted  plea. 

83. 

Usurer. 

84. 

Plea  of  Forfeiture. 

85. 

"The  course  of  Law." 

86. 

Bond. 

87. 

Standing  for  Law. 

88. 

Seal. 

89. 

Moiety. 

90. 

Charter. 

91. 

The  Issue  before  the  Court. 

92. 

Nature  of  Shylock's   suit. 

93. 

Portia's  plea  for  Mercy. 

94. 

Antonio's  confession  of  the  bond. 

95. 

Plea   for  judgment. 

96. 

Justice  of  Shylock's  plea. 

97. 

"I  crave  the  Law." 

98. 

Tender  in  open  Court. 

99. 

Effect  of  legal  precedent. 

100. 

Portia's  judgment  on  the  bond. 

101. 

Commutation  of  punishment. 

102. 

Conveyance   in   use. 

103. 

Deed  of  gift. 

Sec.  79.    Warranty.— 

"Bass.     To  you,  Antonio,  I  owe  the  most,  in  money  and 
in  love; 
And  from  your  love  I  have  a  warranty, 
To  unburthen  all  my  plots  and  purposes, 
How  to  get  clear  of  all  the  debts  I  owe."1 

A  "warranty,"  in  real  property,  was  a  covenant,  where- 
by  the  grantor  of  an  estate  of  freehold  was  bound  to  war- 

1  Merchant  of  Venice,  Act  I,  Scene  I. 

(in) 


112  THE  LAW  IN  SHAKESPEARE. 

rant  the  title  and  either  upon  voucher  or  upon  eviction, 
to  yield  lands  of  an  equal  value  with  those  from  which 
the  tenant  was  evicted.1  In  the  old  practice,  the  war- 
rantor was  called  into  court,  by  the  party  warranted  to 
defend  the  suit  for  him  and  the  time  for  the  voucher  was 
after  the  demandant  had  counted.2  The  thought  expressed 
by  Bassanio  is  that  the  love  of  Antonio  was  to  stand 
sponsor  for  all  his  debts  or  that  by  his  love  his  debts 
were  to  be  warranted. 

Sec.  80.    Breach  of  bond— penalty  for. — 

"Ant.     If  thou  wilt  lend  this  money,  lend  it  not 

As  to  thy  friends   (for  when  did  friendship  take 

A  breed  for  barren  metal  of  his  friend?) 

But  lend  it  rather  to  thine  enemy ; 

Who,  if  he  break,  thou  may'st  with  better  face 

Exact  the  penalty."3 

It  was  remarked  by  Lord  Bacon,  in  one  of  his  Essays,4 
that  people  were  wont  to  say  that  it  was  "against  nature, 
for  money  to  beget  money" ;  Antonio  expresses  this  same 
thought  in  his  philosophy  that  friendship  would  not  exact 
a  breed  "for  barren  metal."  He  asked  no  special  favor 
or  courtesy,  but  only  that  in  case  he  failed  to  keep  his 
bond,  that  the  penalty  be  exacted. 

A  penalty  is  the  undertaking  to  pay  an  additional  sum 
of  money  or  to  submit  to  punishment  of  a  certain  kind, 
if  there  shall  be  a  failure  to  fulfill  the  contract  obligation.5 
The  term  is  mostly  applied  to  pecuniary  punishment,6  but 
may  as  well  include  the  corporal  punishment  included  in 
the  obligation  of  this  bond,  in  case  of  a  breach  of  its 
condition. 


^Coke,  Litt.  365a. 

2  Coke,  Litt.   101b. 

3  Merchant  of  Venice,  Act  I,  Scene  III. 

4  Civil  &  Moral  Essay,  No.   41. 
"Bouvier's  Law   Dictionary. 

8  8   Comyns   Dig.   846. 


MERCHANT  OF  VENICE.  H3 

Sec.  81.    Sealing  a  written  instrument.— 

"Shy.  Go  with  me  to  a  notary;  seal  me  there 
Your  single  bond;  and,  in  a  merry  sport, 
If  you  repay  me  not  on  such  a  day, 
In  such  a  place,  such  sum,  or  sums,  as  are 
Expressed  in  the  condition,  let  the  forfeit, 
Be  nominated  for  an  equal  pound 
Of  your  fair  flesh,  to  be  cut  off  and  taken 
In  what  part  of  your  body  pleaseth  me. 

Ant.     Content,  in  faith:  I'll  seal  to  such  a  bond, 

And  say,  there  is  much  kindness  in  the  Jew,    .... 
Yes,  Shylock,  I  will  seal  unto  this  bond."1 

The  distinction  between  a  singular  bond  and  a  reg- 
ular bond  with  principal  and  surety,  in  common  form, 
is  recognized  by  the  Poet  in  Shylock's  request  for  a 
"single  bond,"  but  in  demanding  the  sealing  of  such 
bond,  the  English  legal  requisite  to  a  valid  spe- 
cialty contract  is  likewise  recognized.  The  novelty 
of  making  written  instruments  with  seals  of  wax 
and  other  ceremonies,  was  introduced  into  England  by 
the  Normans.2  Such  instruments  were  originally  brought 
into  court ;  either  the  king's  court,  the  court  of  the  county, 
or  into  some  assembly  and  there  the  act  of  making  and 
acknowledging  the  instrument  was  performed.3  When 
the  instruments  were  not  executed  in  this  public  manner, 
they  were  usually  attested  by  men  of  character  and  prom- 
inence, or  by  officers  of  the  king,  notaries,  or  such  like, 
or  by  the  mayor,  bailiff  or  some  such  civil  Officer.4  The 
"condition"  of  a  bond  is  that  part  which  specifies  the  agree- 


1  Merchant  of  Venice,  Act  I,  Scene  III. 

2 1  Reeve's  History  English  Law,  p.  336. 

8  In  practice,  a  wafer  or  seal  was  attached  to  the  end  of  the 
writing,  and  the  party  who  executed  it,  after  his  signature  put 
his  finger  on  the  seal  and  said:  "I  deliver  this  as  my  act  and 
deed,"  at  the  same  time  handing  the  writing  over.  Mad  Form. 
Biss.  26;  1  Reeves  History  Eng.  Law,  p.  337. 

4I  Reeve's  History  Eng.  Law,  337. 


114  THE  LAW  IN  SHAKESPEARE. 

ment  between  the  parties  and  the  sum  to  be  paid,  on  the 
breach  of  the  obligation,  is  called  the  forfeit.1 

Shylock's  invitation  to  go  with  him  to  the  "notary," 
had  reference  to  this  legal  ceremony  of  signing  and  seal- 
ing the  bond,  and  Antonio's  consent  to  "seal  to  such  a 
bond"  expresses,  in  common  legal  parlance,  the  familiarity 
of  one  used  to  such  a  ceremony,  and  his  willingness  to 
put  the  obligation  in  the  legal  form  of  a  binding  specialty 
contract. 


1  Bouvier's  Law  Dictionary. 

A  "single  bond," — simplex  obligatio — is  one  in  which  the 
obligor  binds  himself,  his  heirs,  etc.,  to  pay  a  certain  sum  of 
money  to  another  at  a  day  named.  (Bouvier's  Law  Dictionary.) 
It  is  properly  to  be  distinguished  from  a  conditional  bond,  in 
that  the  former  does  not  contain  the  same  form  in  law,  as  the 
latter,  which  is  conditioned  that  if  the  obligor  does  some  act, 
the  bond  is  to  be  void.  It  is  passing  strange  that  the  Poet,  if 
unlearned  in  the  deep  science  and  technicalities  of  the  law,  should 
have  noted,  in  this  verse  this  legal  distinction  between  these 
different  kinds  of  bonds  and  made  of  this  bond,  the  kind  the 
transaction  made  essential,  instead  of  the  other  kind,  that  one 
less  informed  in  the  law  would  perhaps  have  selected,  or,  more 
likely,  would  have  specialized  no  particular  kind  of  bond  at  all. 
The  substance  and  condition  of  this  bond  and  the  incidents  of 
the  forfeiture  are  related  in  the  Gesta  Romanorum,  but  there  is 
little  doubt,  as  stated  by  Hudson,  but  what  the  details  and  plot 
of  the  play  were  taken  from  the  Italian  novel  by  Giovanni 
Fiorentino,  written  in  1378,  as  the  main  points  of  this  story  are 
reproduced  in  the  play,  in  a  slightly  transformed  form.  Bassanio 
corresponds  to  the  hero  in  this  novel,  who  had  executed  the  bond 
to  the  Jew,  and  his  intended  bride,  disguised  as  a  doctor  of  law 
so  construes  the  bond  as  to  deny  the  Jew  his  pound  of  flesh,  in 
substantially  the  same  way  in  which  the  bond  was  construed  by 
Portia.  (See  Introduction  to  Hudson's  Merchant  of  Venice,  pp. 
50,  51.) 

Glendower  is  quoted  as  saying,  in  1'  Henry  IV: 
"Glen.    Come,  come,  lord  Mortimer;   you  are  as  slow, 
As  hot  lord  Percy   is  on  fire  to  go. 
By  this  our  book's  drawn:  we'll  but  seal,  and  then 
To  horse  immediately."  (Act  III,  Scene  I.) 


MERCHANT  OF  VENICE.  115 

Sec.  82.    Extorting  evidence  upon  the  rack. — 

'Tor.     Ay,  but  I  fear,  you  speak  upon  the  rack, 
Where  men  enforced  do  speak  anything."1 


Alluding  to  the  old  custom  of  sealing  instruments  with  soft 
wax,  Falstaff,  in  2'  Henry  IV,  refers  to  his  meeting  with  Justice 
Shallow,  as  follows:  "Fal.  .  .  .  I'll  through  Glostershire ; 
and  there  will  I  visit  master  Robert  Shallow,  esquire;  I  have  him 
already  tempering  between  my  finger  and  my  thumb  and  shortly 
will  I  seal  with  him."     (Act  IV,  Scene  III.) 

Pandarus  tells  Troilus  and  Cressida,  after  the  details  of  their 
pre-contract  of  marriage,  are  agreed  to:  "Pan.  Go  to,  a  bargain 
made;  seal  it,  seal  it;  I'll  be  the  witness."     (Act  III,  Scene  II.) 

The    Senators    tell    Alcibiades,    in    urging    clemency    for    the 
people  of  Athens,  in  Timon  of  Athens: 
"2  Sen.    .     .    all  thy  powers, 

Shall  make  their  harbour  in  our  town,  till  we 
Have  seal'd  thy  full  desire."  (Act  V,  Scene  V., 

Coriolanus  tells  the  Citizens,  on  his  return  to  the  Volscians: 
"Cor.  .  .  .  And  we  here  deliver,  subscrib'd  by  the  consuls 
and  patricians,  together  with  the  seal  o'  the  senate,  what  we  have 
compounded   on."     (Act  V,   Scene  V.) 

Pompey  tells  Lepidus,  in  Antony  and  Cleopatra: 
"Pom.    I  hope  so,  Lepidus. — Thus  we  are  agreed: 
I   crave   our   composition   may   be   written, 
And  seal'd  between  us."  (Act  II,  Scene  VI.) 

Enobarbus  tells  Agrippa,  in  Antony  and  Cleopatra: 
"Eno.    They  have  despatched  with  Pompey,  he  is  gone; 

The  other  three  are  sealing."  (Act  III,  Scene  II.) 

Antony,  in  his  death,  is  made  to  refer  to  the  legal  formula  of 
sealing,  in  the  following  lines: 
"Ant.     .    .     .    Now,  all  labour 

Mars  what  it  does;    yea,  very  force  entangles 
Itself  with  strength;    Seal  then,  and  all  is  done." 

(Act  IV,  Scene  XII.) 
Helicanus,  in  Pericles,  Prince  of  Tyre,  speaks  of  the  "Seal'd 
commission,  left  in  trust,"  with  him,  on  the  commencement  of 
his  journey,  by  king  Pericles.     (Act  I,  Scene  III.) 

Simonides  joins  the  hands  of  Pericles,  Prince  of  Tyre,  and  his 
daughter  Thasia,  and  tells  them  that  their  "hands  and  lips  must 
seal  it  too."     (Act  II,  Scene  V.) 

1  Merchant  of  Venice,  Act  III,  Scene  II. 


116  THE  LAW  IN  SHAKESPEARE. 

The  rack  was  an  engine  with  which  to  torture  a  supn 
posed  criminal  to  extort  a  confession  of  his  crime  from 
him,  together  with  the  names  of  his  supposed  accom- 
plices.1 It  consisted  of  an  oblong  frame  of  wood,  with 
four  beams,  raised  from  the  ground,  on  which  the  witness 
was  stretched  and  bound;  cords  were  attached  to  his  ex- 
tremities, and  they  were  gradually  stretched  by  means  of 
a  lever  and  pulleys,  until  the  evidence  was  forthcoming, 
or  the  limbs  of  the  sufferer  were  dislocated.  The  rack 
was  used  in  England  in  the  fifteenth  and  sixteenth  cen- 
turies and  according  to  Lord  Coke  it  was  first  introduced 
into  the  Tower  by  the  duke  of  Exeter,  constable  of  the 
Tower,  in  1447,  from  whence  it  derived  the  name,  "the 
duke  of  Exeter's  daughter."  It  is  mentioned  by  Holin- 
shed,  in  1467,  and  in  the  time  of  King  Henry  VIII, 
it  became  a  common  appliance  for  the  torture  of  prisoners 
of  the  Tower.  Punishment  by  the  rack  took  place  during 
the  reign  of  the  Tudor  sovereigns,  by  warrant  of  the  coun- 
cil, or  under  the  sign-manual,  but  in  1628,  on  the 
murder  of  the  duke  of  Buckingham,  by  Felton,  when  it 
was  proposed  in  the  privy  council  to  put  the  assassin  to 
the  rack,  to  compel  him  to  divulge  his  accomplices,  the 
judges  resisted  the  proceeding,  because  it  was  contrary 
to  the  English  law.  While  it  has  never  been  used  by 
the  Americans,  it  was  used  by  the  French  in  Montreal, 
and  is  preserved  as  a  relic  of  the  French  rule  in  that 
country.2 

Of  course,  when  subjected  to  such  torture,  the  witness 
was  liable  to  state  whatever  was  desired  to  be  disclosed 
by  him,  hence  Portia's  reference  to  the  enforced  state- 
ments of  Bassanio. 


1  Bouvier's  Law  Dictionary. 

2  Taylor's  Elem.  Civil  Law. 

The  wrists  and  ankles  of  the  witness  were  fastened  'by  cords 
attached  to  rollers  at  the  end  of  the  frame  work,  on  which  he  was 
stretched.  These  rollers  were  then  drawn  in  opposite  directions, 
until   the  body  of  the  victim  was  raised   to  a  level   with  the 


MERCHANT  OF  VENICE.  117 

frame;  if  he  refused  to  disclose  what  was  asked  him,  or  desired 
to  be  obtained,  in  response  to  the  interrogatories  submitted,  the 
rollers  were  further  moved  until  at  last  the  bones  were  drawn 
from  the  sockets.     (Americana.) 

When  pressed  for  an  answer,  Falstaff  is  made  to  say,  in  1' 
Henry  IV  (Act  II,  Scene  IV):  "Fal.  What,  upon  compulsion? 
No,  were  I  at  the  strappado,  or  all  the  racks  in  the  world,  I 
would  not  tell  you,  on  compulsion." 

Edmund  Mortimer,  in  1'  Henry  VI,  referring  to  his  imprison- 
ment, said:  "Mor.  .  .  Even  like  a  man  new  haled  from  the 
rack,  So  fare  my  limbs  with  long  imprisonment."  (Act  II, 
Scene  V.) 

With  others,  the  Cardinal  Beaufort,  upbraided  the  good  Duke 
of  Gloster  in  2'  Henry  VI,  as  follows:  "Car.  The  commons  hast 
thou  rack'd;  the  clergy's  bags  are  lank  and  lean  with  thy  extor- 
tions."    (Act  I,  Scene  III.) 

Referring  to  the  fortitude  of  his  tool,  John  Cade,  the  duke  of 
York,  in  2'  Henry  VI,  said:  "York.  Say,  he  be  taken,  rack'd 
and  tortured:  I  know  no  pain  they  can  inflict  upon  him,  will 
make  him  say — I  mov'd  him  to  those  arms."     (Act  III,  Scene  I.) 

Cressida  and  Pandarus,  in  the  colloquy  over  Troilus,  in  Troilua 
and  Cressida  say:  "Pan.  I  can't  choose  but  laugh,  to  think 
how  she  tickled  his  chin; — Indeed,  she  has  a  marvelous  white 
hand,  I  must  needs  confess. 

Cres.    Without  the  rack?"     (Act  I,  Scene  II.) 

Paulina  refers  to  torture  by  the  rack,  in  Winter's  Tale,  when 
she  asks  Leontes:  "Paul.  What  studied  torments,  tyrant,  hast 
for  me?  What  wheels?  racks?  fires?  What  flaying,"  etc.  (Act  III, 
Scene  II.) 

Antony  tells  Eros,  in  Antony  and  Cleopatra:  "Ant.  .  .  . 
That  which  is  now  a  horse,  even  with  a  thought,  The  rack 
dislimns."     (Act  IV,  Scene  XII.) 

Lear  refers  to  the  rack,  when  he  replies  to  Albany  as  follows: 
"O  most  small  fault,  How  ugly  did'st  thou,  in  Cordelia  show: 
Which,  like  an  engine  wrenched  my  frame  of  nature,  From  the 
fix'd    place."     (Act    I,    Scene    IV.) 

On  the  death  of  Lear,  the  Earl  of  Kent  is  made  to  say: 
"Kent.     Vex  not  his  ghost: — O,  let  him  pass;   he  hates  him, 
That  would  upon  the  rack  of  this  tough  world 
Stretch  him  out  longer."  (Act  V,  Scene  III.) 

Othello  tells  Iago,  after  he  has  thoroughly  aroused  his  jealousy: 
"Avaunt:  be  gone:  thou  hast  set  me  on  the  rack."  (Act  III, 
Scene  III.) 


117a      *  THE  LAW  IN  SHAKESPEARE. 

Sec.  82a.    Tainted  plea.— 

"Bass.    In  law,  what  plea  so  tainted  and  corrupt 
But,  being  season  'd  with  a  gracious  voice, 
Obscures  the  show  of  evil?    In  religion, 
What  damned  error,  but  some  sober  brow 
Will  bless  it  and  approve  it  with  a  text, 
Hiding  the  grossness  with  fair  ornament?"1 

In  this  casket  scene,  where  Portia  did  all  that  she  could, 
by  means  of  the  song,  to  advise  Bassanio  of  the  selection 
to  make,  without  violating  her  express  promise,  in  solilo- 
quizing upon  the  hollowness  of  outward  show  and  osten- 
tation and  the  prevalency  with  which  the  world  was  de- 
ceived with  ornaments,  so  prone  was  the  poet  to  indulge 
in  legal  references  and  illustrations,  that  the  popular  con- 
ceit of  the  time,  that  the  legal  profession,  when  retained 
upon  the  side  of  an  evil  cause,  used  even  the  guile  of  a 
gracious  voice,  as  an  arrow  for  the  heart,  in  order  to  ob- 
scure the  "show  of  evil,"  found  expression  in  this  fling  at 
the  lawyers  of  that  day. 

While  a  popular  notion,  that  a  " tainted  and  corrupt" 
plea,  at  law,  was  obscured  or  covered  up,  by  a  "  gracious 
voice,"  the  fact  that  the  court  or  jury  also  heard  the 
other  side,  no  doubt  made  it  as  difficult  in  that  time  as  it 
is  in  this  for  an  "evil  cause"  to  run  the  gauntlet  of  the 
courts.  The  pit,  then  as  now,  no  doubt  applauded  this 
reference  of  the  lover  to  the  popular  conceit,  at  the  ex- 
pense of  lawyers,  but  those  who  have  spoken  in  the  inter- 
est of  a  "tainted  plea,"  in  court,  even  with  the  devil's 
choicest  quiver,  aim'd  directly  at  the  heart  of  an  austere 
judge,  with  however  gracious,  soft,  or  even  tremulous 
voice,  have,  perhaps,  experienced  how  wide  of  the  mark 
these  well  selected  arrows  fly  and  how  seldom,  in  reality, 


1  Merchant  of  Venice,  Act  III,  Scene  II. 


THE  MERCHANT  OF  VENICE.  117b 

a  tainted  plea  or  an  evil  cause  prevails,  where  correct 
judicial  standards  are  applied.2 

The  courts  are  organized  to  enforce  the  right  and  to 
redress  the  wrong.  A  tainted  plea,  being  urged  in  the 
furtherance  of  a  wrong,  it  is  the  very  business  and  object 
of  the  court  to  prevent  the  same  and  hence,  it  is  the  rule 
that  the  court,  itself,  stands  as  an  insurmountable  ob- 
stacle to  the  attainment  of  a  " tainted  plea,"  however 
much  it  may  ' '  obscure  the  show  of  evil. ' ' 

Indeed,  the  poet  seemed  to  realize  that  while  "a  gra- 
cious voice,"  "in  law,"  might  more  or  less  obscure  the 
1 '  show  of  evil, ' '  it  was  the  exception  and  not  the  rule,  for 
such  a  plea  to  run  the  gauntlet  of  the  court,  for  by  way 
of  drawing  a  parallel  to  such  a  plea,  in  law,  he  uses  the 
rare  exception,  in  religion,  where  "some  sober  brow," 
"will  bless"  and  approve,  with  a  text,  the  "damned  er- 
ror," that  owes  its  origin  to  the  Devil  alone  and  which  is 
foreign  to  the  beneficent  object  of  religion. 

At  first  reading,  this  verse,  therefore,  would  seem  to 
reflect  upon  the  courts.  The  poet  stops  short  of  conclud- 
ing that  the  "tainted  plea"  can  be  successfully  urged,  by 
means  of  a  "gracious  voice,"  but  only  observes  that  the 
"show  of  evil"  therein,  may  be  obscured  thereby.  And 
in  likening  the  fallacy  of  advocating,  in  law,  the  tainted 
plea,  he  draws  the  parallel  of  the  religious  text,  based 
upon  "damned  error,"  which  "some  sober  brow"  will 
bless  and  approve,  with  a  text. 

It  is,  of  course,  not  the  rule,  in  religion,  to  speak  in 
furtherance  of  "damned  error,"  any  more  than  it  is,  in 
law,  to  urge  a  ' i  tainted  plea. ' '  There  are  churchmen  and 
lawyers,  who  sometimes  do  these  things,  but  fortunately 
it  is  only  "some"  of  the  "sober  brows"  in  religion,  who 
approve  false  texts,  just  as  it  is  in  law,  the  rare  exception 
that  a  "tainted  plea,"  although  obscured  by  a  gracious 
voice,  can  prevail,  in  a  court  of  justice. 

•This  quotation  is  referred  to,  by  Judge  Henry  Lamm,  the  lit- 
erary member  of  the  Supreme  Court  of  Missouri,  in  his  usual 
instructive  manner,  in  the  case  of  Cook  vs.  Newby,  213  Mo.  493. 


118  THE  LAW  IN  SHAKESPEARE. 

Sec.  83.    Usurer.— 

"Shy.  .  .  .  Let  him  look,  to  his  bond:  he  was  wont 
to  call  me  usurer; — let  him  look  to  his  bond:  he  was 
wont  to  lend  money  for  a  Christian  courtesy; — let 
him  look  to  his  bond."1 

Shylock's  expressed  animosity  toward  Antonio,  because 
he  was  "wont  to  call  me  usurer,"  is  in  strict  accordance 
with  the  history  of  the  subject  of  usury,  in  England.  The 
first  usurers,  in  England,  were  the  Jews.2  During  the 
Crusades,  when  everything  but  military  glory  and  re- 
ligious zeal,  was  neglected  by  the  Britons,  the  Jews,  who 
had  come  from  Normandy,  after  the  Conquest,  became 
the  chief  money  lenders  in  England.3  On  account  of 
their  rapacity,  the  Jewish  money  lenders  were  banished 
from  England,  near  the  close  of  the  thirteenth  century.4 
The  church  then  attempted  the  handling  of  usurers,  pun- 
ishing them,  "for  the  good  of  their  souls,"  by  censures 
and  excommunications,5  and  from  the  fifteenth  until  the 
middle  of  the  nineteenth  century,  in  England,  the  sub- 
ject of  usury  was  a  fruitful  source  of  legislation.6  The 
injunction  of  Moses,  against  the  exaction  of  usury,7  which 


In  the  XXXIIF   Sonnet,  it  is  said: 
"Anon  permit  the  basest  clouds  to  ride 
With  ugly  rack  on  his  celestial  face, 
And  from  the  forlorn  world  his  visage  hide, 
Stealing  unseen  to  west  with  this  disgrace."   (5,  8.) 

The  rack  is  referred  to  in  the  CXXVT  Sonnet,  in  these  lines: 
"If  Nature,  sovereign  mistress  over  wrack, 
As  thou  goest  onwards,  still  will  pluck  thee  back, 
She  keeps  thee  to  this  purpose,  that  her  skill 
May  time  disgrace  and  wretched  minutes  kill."     (5,  8.) 

1  Merchant  of  Venice,  Act  III,  Scene  I. 

'Webb,  Usury,  Sec.  9. 

■Kelly,    on   Usury,   p.   17. 

*Epist.  Paul  Bleseus,  156,  p.  242. 

"Roll.  Abr.  Tit.  Usurers. 

•Webb,  Usury,  p.  8. 

1  Lev.  XXV.,  35-37;  Deut.  XXIII.,  19-20. 


MERCHANT  OF  VENICE.  119 

the  Christian  would  naturally  follow,  is  no  doubt  intended, 
in  the  reference,  by  Shylock,  to  the  loaning  of  money  as 
a  "Christian  courtesy,"  but  the  Jew  could  claim  the  benefit 
of  the  dispensation  of  the  Mosaic  law,  as  it  permitted  such 
transactions  with  strangers.1 


1  Ante  idem.     Plow.   85;    Fleta,  lib.   2,   c.   27. 

The  Romans  and  Athenians  attempted  at  divers  times,  the 
regulation  of  usury,  without  giving  satisfaction  to  the  people 
(IV  Gibbon,  Rome  368);  the  policy  of  maintaining  some  restric- 
tions upon  money  lenders  is  still  prevalent,  but  usury  is  not 
now  regarded  with  the  same  feeling  that  all  who  practice  it  are 
iniquitous,  as  they  were  formerly  regarded.     Webb,  Usury,  p.  13. 

Speaking  of  the  prejudice  against  usurers,  in  both  ancient  and 
modern  times,  Lord  Bacon,  in  his  Essay  (Civil  and  Moral,  No. 
41)  said:  "Many  have  made  witty  invectives  against  usury. 
They  say  it  is  the  pity  the  Devil  should  have  God's  part,  which 
is  the  tithe;  that  the  usurer  is  the  greatest  Sabbath  breaker, 
because  his  plow  goeth  every  Sunday;  .  .  that  the  usurers 
breaketh  the  first  law,  that  was  made  for  mankind,  after  the 
fall,  which  was,  in  sudor 'e  vultus  tui  comedes  panem  tuum; 
that  it  is  against  nature  for  money  to  beget  money  and  the 
like.     .     .     .     Few  have  spoken  of  usury  usefully." 

But  comparing  money  lenders  with  others  whose  cupidity  for 
getting  rich,  is  not  materially  different,  Judge  Lumkin,  for  the 
Georgia  Supreme  Court  said:  "They  may  be  as  inexorable  as 
Shylock  and  the  more  selfish  and  callous,  from  the  fact  that 
they  earn  their  living  by  dealing  indirectly  in  money,  the  love 
of  which  is  the  root  of  all  evil.  But  observation  has  convinced 
me  that  all  who  will  be  rich,  whether  usurers  or  land-jobbers, 
or  speculators  of  any  other  class,  .  .  fall,  not  only  into  divers 
temptations  and  snares,  but  soon  become  almost,  if  not  alto- 
gether, regardless  of  the  means  by  which  they  seek  to  attain 
their  end." 

Gloster  tells  the  Bishop  of  Winchester,  in  1'  Henry  VI: 
"Glo.  .  .  Thou  art  a  most  pernicious  usurer."  (Act  III, 
Scene  I.) 

Apemantus,  tne  philosopher,  in  Timon  "f  Athens,  said:  "Apem. 
Poor  rogues  and  usurer's  men:  bawds  between  gold  and  want." 
(Act  II,  Scene  II.) 

And  tfce  fool    jaid:     "Fool.     I  think,  no  usurer  but  has  a  fool 


120  THE  LAW  IN  SHAKESPEARE. 

Sec.  84.    Plea  of  forfeiture.— 

"Sale.     Never  did  I  know  a  creature, 
That  did  bear  the  shape  of  man. 
So  keen  and  greedy  to  confound  a  man: 
He  plies  the  duke  at  morning  and  at  night; 
And  doth  impeach  the  freedom  of  the  state, 
If  they  deny  him  justice:  twenty  merchants, 
The  duke  himself,  and  the  magnificoes, 
Of  greatest  port,  have  all  persuaded  with  him ; 
But  none  can  drive  him  from  the  envious  plea 
Of  forfeiture,  of  justice,  and  his  bond."1 

Forfeitures  have  always  been  regarded  with  odium  by 
the  courts.2  This  fact  was  evidently  known  and  appre- 
ciated by  the  Poet,  for  in  this  verse,  he  presents  the  most 
hideous  plea  for  a  forfeiture  that  could  well  be  conceived, 
of  a  hated  Jew,  urging  a  forfeiture  against  a  gentle  and 
lovable  person,  in  such  manner  as  to  encompass  his  life. 

to  his  servant:    My  mistress  is  one  and  I  am  her  fool."     (Act  II, 
Scene  II.) 

Alcibiades  tells  the  Senate,  on  refusal  of  his  plea  for  the  life 
of  his  soldier  client,  in  Timon  of  Athens:  "Alcib.  Banish  me? 
Banish  your  dotage;  banish  usury,  that  makes  the  Senate  ugly." 
(Act  III,  Scene  V.) 

Timon  of  Athens,  in  the  forest  tells  Alcibiades:  "Tim.  Pity 
not  honour' d  age,  for  his  white  beard,  He's  an  usurer."  (Act  IV, 
Scene   III.) 

A  citizen,  in  Coriolanus,  said:  "1  Cit.  .  .  Suffer  us  to 
famish,  and  their  store-houses  crammed  with  grain;  make  edicts 
for  usury,  to  support  usurers."     (Act  I,  Scene  I.) 

In  the  sixth  Sonnet,  in  urging  the  natural  use  of  beauty,  the 
Poet  thus  refers  to  usury: 

"That  use   is  not  forbidden   usury, 
Which  happies  those  that  pay  the  willing  loan." 
The  incarceration  of  Southampton,   is  compared  to  the  exac- 
tion of  usury  for  the  debt  due  by  the   Poet,  in  the  CXXXIV 
Sonnet : 

"The  statute  of  thy  beauty  thou  wilt  take, 
Thou  usurer,  that  put'st  forth  all  to  use, 
And  sue  a  friend  came  debtor  for  my  sake."     (9,  11.) 

1  Merchant  of  Venice,  Act  III,  Scene  II. 

2  4  Kent's  Comm.  81,  82,  424. 


MERCHANT  OF  VENICE.  121 

And  this,  in  such  greedy  and  importunate  manner  as  that 
delineated,  so  that  none  could  drive  him  from  "the  en- 
vious plea  of  forfeiture/'  which  he  sought  in  the  name 
of  "justice  and  his  bond."  The  injustice  of  such  a  plea 
could  not  well  be  presented  in  an  abler  manner  than  is 
done  in  this  verse. 

A  forfeiture  of  a  bond  is  the  failure  to  perform  the 
condition  upon  which  the  obligee  was  to  be  excused  from 
the  penalty  in  the  bond.1  The  word  forfeiture  includes 
not  merely  the  idea  of  losing  the  penalty,  but  also  of 
having  the  property  right  transferred  to  the  other  party, 
without  the  consent  of  the  party  who  has  violated  his 
obligation.  Where  the  enforcement  of  a  forfeiture  was 
unjust,  courts  of  equity  always  granted  relief  therefrom,2 
and  courts  of  law  finally  came  to  assume  a  like  jurisdic- 
tion.3 

Sec.  85.     "The  course  of  law."— 

"Ant.     The  duke  cannot  deny  the  course  of  law. 
For  the  commodity  that  strangers  have 
With  us  in  Venice,  if  it  be  denied, 
Will  much  impeach  the  justice  of  the  state."* 


1  Bouvier's  Law   Dictionary. 

2  Coke,   Litt.    209a;    2   Bl.   Comm.   340. 

3  Ante  idem. 

The  relief  furnished  by  Antonio,  against  the  forfeitures  sought 
by  the  Jew,  against  other  debtors,  is  mentioned  as  the  basis  for 
his  dislike,  by  Antonio,  in  these  words: 

"Ant.     ...     He  seeks  my  life;   his  reason  well  I  know; 
I  oft  delivered  from  his  forfeitures, 
Many  that  have  at  times  made  moan  to  me; 
Therefore  he  hates  me." 
Salan.     I  am  sure,  the  duke  will  never  grant  this  forfeiture 
to  hold."     (Merchant  of  Venice,  Act  III,  Scene  III.) 

Varro's  Servant,   on   referring  to  the  past  due  bonds  of   his 
master,  he  presented  to  Timon,  in  Timon  of  Athens,  said:    "Var. 
Serv.     'Twas  due  on  forfeiture,  my  lord,  six  weeks."     (Act  II, 
Scene  II.) 
*  Merchant  of  Venice,  Act  III,  Scene  III. 


122  THE  LAW  IN  SHAKESPEARE. 

This  is  a  beautiful  and  touching  tribute  paid  by  the 
Poet  to  the  majesty  of  the  law,  which  was  recognized  as 
beyond  and  above  the  power  of  royalty.  That  the  denial 
of  the  affirmative  rights  of  any  citizen  would  "much  im- 
peach the  justice  of  the  state"  by  denying,  from  analogy, 
the  property  rights  of  the  strangers  in  the  city,  by  the  like 
denial  of  "the  course  of  law,"  is  an  observation  in  keep- 
ing with  the  whole  philosophy  of  the  law  and  the  dan- 
ger of  breaking  down  the  precedents  or  the  regular  course 
of  legal  proceedings  is  plainly  set  forth  in  this  verse. 

Macbeth  exclaims:  "This  even-handed  justice  commends  the 
ingredients  of  our  poison'd  chalice  to  our  own  lips."  (Macbeth, 
Act  I,  Scene  VII.) 

The  lofty  idea  here  expressed  is  that  involved  in  the  appeal  to 
the  ideal  feeling,  which  defends  the  law,  because  it  is  the  law  and 
not  on  account  of  any  personal  interest.  This  is  the  ideal  height 
of  the  struggle  for  law,  when  the  motive  of  personal  interest  is 
subordinated  for  that  of  the  moral  preservation  of  the  state,  by 
co-operation  for  the  realization  of  the  idea  of  law.  Von  Ihering's 
Struggle  for  Law,  p.  73. 

The  Chief  Justice  explains  to  Henry  V,  why  the  laws  must  be 
impartially  enforced,  in  2'  Henry  IV,  as  follows: 
"Ch.  Jus.     .     .    Be  you  contented,  wearing  now  the  garland, 
To  have  a  son  set  your  decrees  at  nought; 
To  pluck  down  justice  from  your  awful  bench; 
To   trip   the   course  of   law,  and   blunt   the   sword, 
That  guards  the  peace  and  safety  of  your  person." 

(Act  V,  Scene  II.) 

After  the  Justice's  explanation  of  the  necessity  of  enforcing 
the  law  against  all  alike,  Henry  V,  said  to  him,  in  2'  Henry  IV: 
"King.  You  did  commit  me;  For  which,  I  do  commit  into  your 
hand,  the  unstained  sword  that  you  have  used  to  bear;  with  this 
remembrance, — that  you  use  the  same  with  the  like  bold,  just 
and  impartial  spirit,  as  you  have  done  'gainst  me."  (Act  V, 
Scene  II.) 

In  referring  to  his  previous  contempt  of  court,  the  Chief  Jus- 
tice tells  the  former  Prince  of  Wales,  in  2'  Henry  IV:  "Ch.  Jus. 
Your  highness  pleased  to  forget  my  place;  The  majesty  and  power 
of  law  and  justice,  The  image  of  the  king,  whom  I  presented, 
And  struck  me  in  my  very  seat  of  judgment."     (Act  V,  Scene  II.) 


MERCHANT  OF  VENICE.  123 

Sec.  86.    Bond.— 

"Shy.     I'll  have  my  bond;  I  will  not  hear  thee  speak: 
I'll  have  my  bond;  and  therefore  speak  no  more. 
I'll  not  be  made  a  soft  and  dull-ey'd  fool, 
To  shake  the  head,  relent,  and  sigh  and  yield 
To  Christian  intercessors.       Follow  not;" 
I'll  have  no  speaking;  I  will  have  my  bond."1 

This  repeated  declaration  of  intention,  on  Shylock's 
part,  to  have  nothing  but  his  "bond,"  heightens  the  inter- 
est in  the  final  trial  scene,  since  it  is  but  natural  anxiety, 
to  wait  and  see  if  the  judgment  in  the  trial  scene  will 
enforce  or  reject  this  inhuman  demand,  guaranteed  by 
the  solemn  written  contract.  The  repetition  also  empha- 
sizes the  nature  of  the  right  guaranteed  him,  by  his  writ- 
ten contract,  in  the  shape  of  a  solemn  bond. 

A  "bond"  is  an  obligation  in  writing  and  under  seal.2 
Formerly,  on  the  forfeiture  of  a  bond,  the  whole  penalty 
was  recoverable  at  law,  but  in  courts  of  equity — where 
forfeitures  were  relieved  against — on  breach  of  an  obliga- 
tion for  payment  of  money  only,  the  court  would  compel 
an  acceptance  of  the  original  sum,  with  interest  and  deny 
the  penalty,  and,  finally,  on  this  practice  becoming  gen- 
eral in  courts  of  law,  as  well,  a  statute  was  enacted,  in 
England,3  providing  that  a  tender  of  principal  and  inter- 
est with  accrued  costs,  would  operate  as  a  full  satisfaction 
of  a  bond.4 

Buckingham  tells  Gloster,  in  2' Henry  VI:  "Buck.  Thy  cruelty 
in  execution  upon  offenders,  hath  exceeded  law,  and  left  thee 
to  the  mercy  of  the  law."     (Act  I,  Scene  III.) 

Speaking  of  the  death  of  the  good  Gloster,  Cardinal  Beaufort 
said,  in  2'  Henry  VI:  "Car.  .  .  .  But  yet  we  want  a  colour  for 
his  death,  'Tis  meet  he  be  condemn'd  by  course  of  law."    (Act  III, 

Scene  I.) 

1  Merchant  of  Venice,  Act  III,  Scene  III. 
'Bouvier's  Law  Dictionary. 
•4  &  5  Anne,  c.  16. 
4  2  Bl.  Comm.  340. 

Mr.  Davis,  in  his  commentaries  on  the  "Law  in  Shakespeare" 


124  THE  LAW  IN  SHAKESPEARE. 

Sec.  87.     Standing  for  law. 

"Shy.     Repair  thy  wit,  good  youth,  or  it  will  fall 
To  cureless  ruin. — I  stand  here  for  law."1 

In  keeping  with  the  whole  course  of  Shylock's  conduct, 
before  and  during  the  trial  of  the  issue  of  the  legality  of 

observes  that  the  Poet  might  very  properly  have  invoked  the 
chancery  process  of  injunction  to  relieve  against  the  enforce- 
ment of  this  penalty  of  the  bond,  as  this  procedure  was  then 
recognized  by  the  English  Court  of  Chancery,  but  of  course  if 
this  were  true — which  the  history  of  the  Chancery  Court  estab- 
lishes— an  English  Court  would  have  had  no  jurisdiction  of  an 
action  in  a  Venetian  State,  so  this  observation  would  not  have 
furnished  the  Poet  with  a  much  better  remedy  than  the  subter- 
fuge he  adopted  to  let  Antonio  escape  from  the  obligation  of  his  bond. 

Shylock's  plea  for  his  bond,  is  further  set  out  in  this  play,  as 
follows:  "Shy.  If  every  ducat  in  six  thousand  ducats,  were  in 
six  parts,  and  every  part  a  ducat,  I  would  not  draw  them;  I 
would  have  my  bond."     (Merchant  of  Venice,  Act  IV,  Scene  I.) 

And  again,  he  said:  "Proceed  to  judgment:  by  my  soul,  I 
swear,  There  is  no  power  in  the  tongue  of  man,  to  alter  me:  I 
stay  here  on  my  bond."     (Act  IV,  Scene  I.) 

Dromio  said  to  his  master,  in  Comedy  of  Errors:  "Dro.  Mas- 
ter, I  am  here  entered  in  bond  for  you."     (Act  IV,  Scene  IV.) 

Angelo,  tells  the  Merchant,  in  Comedy  of  Errors:  "Ang.  .  . 
Pleaseth  you  walk  with  me  down  to  his  house,  I  will  discharge 
my  bond  and  thank  you,  too."     (Act  IV,  Scene  I.) 

In  King  Richard  II,  the  following  occurs  between  the  Duke  of 
York  and  the  Duchess: 
"Duch.    What  should  you  fear? 

'Tis  nothing  but  some  bond  that  he  has  enter'd  into 
For  gay  apparel,  'gainst  the  triumph  day. 
York.     Bound  to  himself?     What  doth  he   with  a   bond 
That  he  is  bound  to?  Wife,  thou  art  a  fool. — 
Boy,  let  me  see  the   writing."  (Act   V,   Scene   II.) 

The  Senator  tells  Caphis,  in  Timon  of  Athens:  "Sen.  Take 
the  bonds  along  with  you  and  have  the  dates  in  compt."  (Act 
II,  Scene  I.) 

And  on  presentation  of  the  bonds,  Timon  said:  "Tim.  How 
goes  the  world  that  I  am  thus  encountered  with  clamorous  de- 
mands of  date  broke  bonds."     (Act  II,  Scene  II.) 

1  Merchant  of  Venice,  Act  IV,  Scene  I. 


MERCHANT  OF  VENICE.  125 

his  bond,  this  declaration  of  his  intention  to  "stand  for 
law/'  shows  the  basic  faith  in  the  majesty  of  law,  which 
ought  to  have  had  a  better  reward,  according  to  the  stand- 
ard erected  by  the  judge  who  first  recognized  his  claim, 
then  set  at  naught  this  recognized  legal  .right. 

Placing  his  faith  in  the  law  alone,  he  withstood  the 
taunts  of  those  who  scorned  him,  without  swerving  from 
his  purpose  to  enforce  his  rights,  through  the  medium  of 
the  law  alone.  While  seeking  an  unrighteous  purpose, 
he  was  willing  to  conform  his  actions  and  his  will  to  the 
law,  relying  upon  the  constant  and  perpetual  will,  on  the 
part  of  those  administering  the  law,  to  render  unto  every 
man  his  due.1  In  other  words,  he  stood  "for  law,"  and 
regardless  of  his  illusion,  as  to  the  justness  of  his  cause, 
his  attitude  can  but  commend  his  action,  to  those  who 
appreciate  the  majesty  of  the  law. 

Sec.  88.     Seal.— 

"Shy.     Till  thou  can'st  rail  the  seal  from  off  my  bond, 
Thou  but  offend'st  thy  lungs  to  speak  so  loud."2 

In  these  lines  Shylock  expressed  the  preference  that  his 
debt  held,  under  the  English  law,  because  of  the  seal  at- 
tached, over  debts  not  so  evidenced.     A  bond  or  other 


1  This  is  really  justice,  nothing  more  nor  less.  Justinian,  Inst, 
b.  1,  tit.  1;  Coke,  2'  Inst.  56;  Touillier,  Droit,  Civ.  Fr.  tit.  prel. 
n.  5. 

Falstaff  makes  the  following  reference  to  the  law,  in  a  colloquy 
with  Prince  Henry:  "Fal.  .  .  .  pr'ythee,  sweet  wag,  shall 
there  be  gallows  standing  in  England  when  thou  art  king?  and 
resolution,  thus  fobbed  as  it  is,  with  the  rusty  curb  of  old  father 
antic  the  law?"     (1'  Henry  IV,  Act  I,  Scene  II.) 

In  refusing  the  plea  of  Alcibiades  for  his  cli'ent,  in  Timon  of 
Athens,  the  Senator  tells  him:  "1  Sen.  We  are  for  law,  he  dies; 
urge  it  no  more,  on  height  of  our  displeasure:  Friend  or  brother, 
he  forfeits  his  own  blood,  that  spills  another."  (Act  III, 
Scene  V.) 

Timon  of  Athens,  tell  the  thieves  who  come  to  him,  in  the 
forest:  "Tim.  The  laws,  your  curb  and  whip,  in  their  rough 
power,  Have  uncheck'd  theft."     (Act  IV,  Scene  III.) 

'Merchant  of  Venice,  Act  IV,  Scene  I. 


126  THE  LAW  IN  SHAKESPEARE. 

writing,  under  seal,  was  called  a  specialty  contract,  to  dis- 
tinguish it  from  other  writings  or  contracts,  not  bearing 
a  seal.1  A  specialty  debt,  such  as  a  bond  under  seal,  in 
the  event  of  the  debtor's  death,  prior  to  1870,  when  such 
preference  was  abolished,  had  the  right  of  prior  payment 
over  simple  contract  debts.2  The  Anglo-Saxons  affixed 
the  cross,  but  the  Normans  introduced  the  custom  of  seal- 
ing all  specialty  contracts  with  seals  of  wax  and  the 
execution  of  written  instruments  after  the  conquest  was 
accompanied  with  various  circumstances  of  solemnity, 
such  as  sealing,  dating,  attesting  and  otherwise  evidencing 
the  execution  of  the  instrument  by  the  parties  thereto.3 
These  seals  of  wax  were  of  various  colors  and  were  gen- 
erally round  or  oval  and  were  affixed  to  a  label  on  the 
parchment  or  to  a  silk  string  fastened  to  a  fold  at  the 
bottom  of  the  writing  or  to  a  slip  of  the  parchment,  cut 
from  the  writing  and  made  pendulous  to  impart  greater 
character  to  the  document.4  The  distinction,  while  ob- 
taining, in  the  Poet's  time,  in  law,  between  sealed  and 
unsealed  instruments,  has  been  largely,  by  statute,  abol- 
ished in  England  at  the  present  day,5  as  well  as  in  the 
United  States.6 


1Lawson,  on  Contracts    (2nd  Ed.). 

2  Ante  Idem.    Bishop,  Contracts;    Beach,  Mod.  Law  Contracts. 
3 1  Reeve's  History  Eng.  Law,  p.  337. 

4  Mad.  Form.   Diss.  26;    I  Reeve's  History  Eng.  Law,  337. 
6Lawson,  Contracts,  supra. 
6  Ante  idem. 

In  King  John,  the  Arch  Duke  of  Austria  said  to  Arthur:  "Upon 
thy  cheek  lay  I  this  zealous  kiss,  As  seal  to  this  indenture  of  my 
love."     (Act   II,   Scene   I.) 

King  John  is  made  to  say,  replying  to  Hubert:     "Hub.    Here 
is  your  hand  and  seal  for  what  I  did. 
K.  John.    0,  when  the  last  account  'twixt  heaven  and  earth 
Is  to  be  made,  then  shall  this  hand  and  seal 
Witness  against  us  to  damnation."  (Act  IV,  Scene  II.) 

In  King  Richard  II,  the  Duke  of  York  said  to  his  son: 
"York.    What  seal  is  that,  that  hangs  without  thy  bosom? 
Yea,  look'st  thou  pale?  let  me  see  the  writing." 

(Act  V,  Scene  II.) 


MERCHANT  OF  VENICE.  127 

Sec.  89.    Moiety.— 

"Duke.     Make  room,  and  let  him  stand  before  our  face. — 
Shylock,  the  world  thinks,  and  I  think  so  too, 
That  thou  but  lead'st  this  fashion  of  thy  malice 
To  the  last  hour  of  act;  and  then,  'tis  thought, 
Thou'lt  show  thy  mercy  and  remorse,  more  strange, 
Than  is  thy  strange  apparent  cruelty: 
And  where  thou  now  exact'st  the  penalty 
(Which  is  a  pound  of  this  poor  merchant's  flesh,) 
Thou  wilt  not  only  lose  the  forfeiture, 
But  touched  with  human  gentleness  and  love, 
Forgive  a  moiety  of  the  principal."1 

This  appeal  for  mercy,  whereby  the  Duke  appeals  to 
Shylock  to  forego  the  penalty  of  his  bond  and  accept 
the  money,  or  forego  a  "moiety  of  the  principal"  is  in 
keeping  with  the  whole  scope  of  the  Poet's  treatment  of 
this  trial.  Instead  of  regarding  the  contract  as  void,  be- 
cause of  its  illegality,  to  obtain  the  better  effect  and  reach 
the  climax  of  the  judgment  scene,  the  Poet  treats  the 
bond  as  legal  and  the  penalty  as  collectible.  This  better 
shows  the  true  character  of  the  Jew,  whose  rights  are 
trampled  under  foot  for  the  dramatic  effect  of  the  trial 
scene,  after  being  judicially  recognized  by  the  Court,  by 
the  subterfuge  on  Portia's  part. 

And  Cade  says,  in  2'  Henry  VI:  "Cade.  .  .  Is  not  this  a 
lamentable  thing,  that  of  the  skin  of  an  innocent  lamb,  should 
be  made  parchment?  that  parchment,  being  scribbled  o'er,  should 
undo  a  man?  Some  say,  the  bee  stings:  but  I  say,  'tis  the  bee's- 
wax,  for  I  did  but  seal  once  to  a  thing  and  I  was  never  my  own 
man  since."     (Act  IV,  Scene  II.) 

The  wicked  Queen  Margaret  takes  her  farewell  from  Suffolk, 
In  2'  Henry  VI,  as  follows: 

"Q.  Mar.    .     .     O,  could  this  kiss  be  printed  in  thy  hand, 
That  thou  might'st  think  upon  these  by  the  seal." 

(Act  III,  Scene  II.) 

Coriolanus  tells  the  Citizens,  from  whom  he  seeks  support: 
"Cor.  I  will  not  seal  your  knowledge,  with  showing  them.  I 
will  make  much  of  your  voices  and  so  trouble  you  no  further." 

(Act  II,  Scene  III.) 

1  Merchant  of  Venice,  Act  IV,  Scene  I. 


128  THE   LAW  IN   SHAKESPEARE. 

"Moiety,"  in  law,  is  the  half  of  any  thing,  as  where 
a  testator  bequeathes  one  "moiety"  of  his  estate  to  one 
person  and  another  to  another,  each  will  take  a  half 
thereof.1  The  "principal"  of  this  obligation,  was,  of 
course,  the  sum  originally  loaned,  less  the  interest  or  dam- 
ages, due  because  of  the  breach.2  These  terms  are  purely 
legal  in  their  scope  and  illustrate  the  familiarity  of  the 
Poet  with  the  lexicon  of  the  law. 


Littleton,  125. 

2  Bouvier's  Law  Dictionary. 

In  All's  Well  That  Ends  Well  (Act  III,  Scene  II),  the  Counted 
said  to  Helena: 

"Count.     I  pr'ythee,  lady,  have  a  better  cheer; 
If  thou  engrossest,  all  the  griefs  are  thine, 
Thou  robb'st  me  of  a  moiety." 

Leontes,  in  Winter's  Tale,  said:  "Given  to  the  fire,  a  moiety 
of  my  rest,  might  come  to  me  again."     (Act  II,  Scene  III.) 

And  Hermione,  the  good  queen,  said:  "A  fellow  of  the  royal 
bed,  which  owe,  a  moiety  of  the  throne,  a  great  king's  daughter." 
(Winter's  Tale,  Act  III,  Scene  II.) 

And,  in  the  same  play,  Autolycus  said  to  the  Shepard:  "Well, 
give  me  the  moiety: — are  you  a  party  in  this  business."  (Act 
IV,  Scene  III.) 

Speaking  of  the  unequal  division  of  his  part  of  the  country 
to  be  conquered,  Hotspur  is  made  to  say,  to  Glendower  and 
Mortimer,  in  1'  Henry  IV:  "Hot.  Methinks,  my  moiety,  north 
from  Burton  here,  in  quantity  equals  not  one  of  yours."  (Act 
III,  Scene  I.) 

Henry  V,  in  wooing  Katharine  of  France,  said:  fiK.  Hen.  .  . 
do  but  now  promise  Kate,  you  will  endeavor  for  your  French 
part  of  such  a  boy;  and,  for  my  English  moiety,  take  the  word 
of  a  king  and  bachelor."     (Act  V,  Scene  II.) 

Richard  soliloquizes,  in  King  Richard  III:  "Glo.  On  me, 
whose  all  not  equals  Edward's  moiety?  On  me,  that  halt,  and  am 
misshapen  thus?"     (Act  I,  Scene  II.) 

The  Duchess  of  York,  on  learning  of  Clarence's  death,  said  to 
her  daughter-in-law,  Queen  Elizabeth,  in  Richard  III:  "Duch.  .  . 
O,  what  cause  have  I  (Thine  being  but  a  moiety  of  my  grief), 
To  over-go  thy  plaints,  and  drown  thy  cries."     (Act  II,  Scene  II.) 

Replying  to  the  suit  of  Queen  Katherine,  in  King  Henry  VIII, 


MERCHANT  OF  VENICE.  129 

Sec.  90.     Charter.— 

"Shy.     I  have  possess'd  your  grace  of  what  I  purpose ; 
And  by  our  holy  Sabbath  have  I  sworn, 
To  have  the  due  and  forfeit  of  my  bond. 
If  you  deny  it,  let  the  danger  light 
Upon  your  charter  and  your  city's  freedom."1 

Shylock  here  proclaims  to  the  Duke  that  if  his  con- 
tract is  not  to  be  enforced,  the  provision  of  the  organic 
law  of  Venice  which  guaranteed  the  inviolability  of  con- 
tract obligations,  would  be  violated.  The  challenge  is  to 
the  effect  that  the  very  Charter  of  the  city  would  be 
threatened  by  such  holding.  A  charter  is  a  grant  made 
by  the  sovereign,  either  to  the  whole  people,  or  to  a  por- 
tion of  them,  securing  to  them  the  enjoyment  of  certain 
rights.2  A  notable  illustration  of  such  an  instrument,  in 
English  history,  was  Magna  Charta,  the  great  repository 
of  English  liberties.3  A  charter  differs  from  a  constitu- 
tion, in  that  the  former  is  granted  by  the  sovereign,  while 
the  latter  is  established  by  the  people  themselves,  but  both 
are  regarded  as  the  fundamental  or  organic  law  of  the 
section  where  they  apply.4 

before  the  king  became  enamored  with  Anne  Boleyn,  he  said 
to  her:  "K.  Hen.  .  .  you  have  half  our  power;  the  other 
moiety,  ere  you  ask,  is  given."     (Act  I,  Scene  II.) 

Caesar  thus  refers  to  Antony's  death,  in  Antony  and  Cleopatra: 
"Caes.  The  death  of  Antony  is  not  a  single  doom;  in  the  name 
lay  a  moiety  of  the  world."     (Act  V,  Scene  I.) 

In  Cymbeline,  Iachimo  said  to  Posthumus,  in  making  the 
wager:  ilIach.  .  .  ■  I  dare,  thereon,  pawn  the  moiety  of  my 
estate  to  your  ring."     (Act  I,  Scene  V.) 

In  King  Lear,  Gloster,  is  made  to  say:  ".  .  For  equalities 
are  so  weighed,  that  curiosity  in  neither,  can  make  choice  of 
either's  moiety."     (Act  I,  Scene  I.) 

1  Merchant  of  Venice,  Act  IV,   Scene  I. 
21  Bl.  Comm.  108;   1  Story,  Con.  Sec.  161. 
'Two  of  the  original  drafts  of  Magna  Charta  are  preserved  in 
the  British  Museum. 
4  Coke,  Litt.  6;   Dane,  Abr.  Charter. 


130  THE  LAW  IN  SHAKESPEARE. 

Sec.  91.    The  issue  before  the  court. — 

"Duke.     Are  you  acquainted  with  the  difference 

That  holds  this  present  question  in  the  court? 

For.     I  am  informed  thoroughly  of  the  cause."1 

The  Duke  here  enquired  as  to  the  Court's  familiarity 
with  the  issue  to  be  decided  and  Portia's  reply  shows  that 
the  Poet  had  in  mind  the  necessity  of  a  familiarity  with 
the  facts  in  issue,  concerning  which  the  judgment  of  the 
law,  upon  those  facts,  was  sought.  It  is  a  rare  thing  that 
even  an  extra  judicial  opinion  as  to  the  construction  of  a 
written  instrument  can  be  offered,  without  having  the 
contract  to  be  construed  before  the  interpreter  thereof,2 
but  in  the  whole  scope  of  this  trial,  it  does  not  appear  that 
the  Court  really  scanned  the  original  of  this  bond,  which 

Jaques,  in  As  You  Like  It,  declares  to  the  Duke:  "I  must 
have  liberty,  withal,  as  large  a  charter  as  the  wind,  to  blow  on 
whom  I  please."     (Act  II,  Scene  VII.) 

King  Richard  II  is  made  to  say,  in  speaking  of  his  willing- 
ness to  grant  blank  charters  for  money  to  carry  on  his  wars. 
(Act  I,  Scene  IV): 

"K.  Rich We  are  forc'd  to  farm  our  royal  realm; 

The  revenue  whereof  shall  furnish  us 
For  our  affairs  in  hand:   If  that  come  short, 
Our  substitutes  at  home  shall  have  blank  charters." 
Stirring  the  citizens  against  Coriolanus,  Brutus  said:      "Bru. 
He  was  your  enemy;  ever  spake  against  your  liberties,  and  the 
charters  that  you  bear,  i'the  body  of  the  weal."     (Act  II,  Scene 
III.) 
In  the  58'  Sonnet,  to  Southampton,  the  Poet  said: 
"Be  where  you  list,  your  charter  is  so  strong 
That  you  yourself  may  privilege  your  time 
To  what  you  will."     (9,  11.) 
Charter  is  referred  to  in  the  LXXXVII'  Sonnet  in  these  lines: 
"The  charter  of  thy  worth  gives  thee   releasing; 
My  bonds  in  thee  are  all  determinate."     (3,  4.) 

1  Merchant  of  Venice,  Act  IV,  Scene  I. 

2  For  the  rules  respecting  the  interpretation  and  construction 
of  written  instruments,  see,  1  Bl.  Comm.  59;  2  Kent's  Comm. 
522;  Parsons,  Cont.  3. 


MERCHANT  OF  VENICE.  131 

Antonio  confessed.  This  is  mentioned  only  to  show  that 
the  conduct  of  the  cause  was  more  according  to  a  special 
code  of  practice  invented  by  the  Poet,  than  by  way  of 
strict  adherence  to  the  practice  in  a  court  of  justice. 

Sec.  92.    Nature  of  Shylock's  suit.— 

'Tor.     Of  a  strange  nature  is  the  suit  you  follow; 
Yet  in  such  rule,  that  the  Venetian  law 
Cannot  impugn  you,  as  you  do  proceed."1 

The  observation  of  the  Court  that  the  suit  was  of  a 
"strange  nature"  is  clearly  indisputable,  but  the  other  con- 
clusion that  "the  Venetian  law  cannot  impugn  you,  as  you 
do  proceed,"  is  at  variance  with  the  later  conclusion  of  the 
Court  itself,  who  adjudges  that  the  very  object  of  the  suit 
was  counter  to  the  law  of  Venice  and  of  such  a  criminal 
nature  as  to  make  forfeit  the  life  of  Shylock  and  his  estate 
confiscate  unto  the  Crown.  In  view  of  this  later  conclu- 
sion, the  statement  here  made  that  the  law  cannot  im- 
pugn him,  in  the  progress  of  such  an  unrighteous  cause, 
is  at  variance  with  all  rules  of  jurisprudence.  All  con- 
tracts having  for  their  object  the  taking  of  human  life 
have  always  been  regarded  as  void,  because  contrary  to 
good  morals.2  Nor  could  it  be  insisted  that  this  proceed- 
ing would  have  been  legal,  according  to  the  Twelve  Tables 
of  the  Romans,  for  the  procedure  is  at  variance  with  the 
authorized  process  for  the  punishment  of  the  debtor,  ac- 
cording to  the  Twelve  Tables,  as  history  reproduces  them.3 

1  Merchant  of  Venice,  Act  IV,  Scene  I. 

2Lawson,  Contracts  (2nd  Ed.)  343,  and  citations. 

8  By  the  3'  Table,  the  debtor  had  until  thirty  days  after  judg- 
ment to  pay  his  debt  and  if  he  did  not  then  pay  or  give  security, 
or  sell  himself,  by  entering  into  the  nexum,  his  creditor  could 
seize  him,  load  him  with  chains  and  treat  him  as  a  slave.  Then 
after  sixty  days  more,  if  he  failed  to  pay,  he  was  brought  into 
the  market  place  and  either  put  to  death  or  sold  as  a  slave  into 
Etruria.  It  was  only  where  there  were  several  creditors  that  he 
might,  at  their  election,  be  divided  and  his  body  partitioned  be- 
tween them.    Gibbon,  vol.  VII,  p.  92;    Gravina,   De  Jura  Nat. 


132  THE  LAW  IN  SHAKESPEARE. 

Portia  claims  to  be  able  to  show  a  special  statute  or 
decree  holding  the  object  of  this  bond  to  be  a  crime  and 
if  this  were  true  the  same  statute  would,  by  necessary 
implication,  make  void  the  bond,  given  to  evidence  such 
criminal  act  as  the  contract  contemplated.1 

Sec.  93.    Portia's  plea  for  mercy. — 

"Por.     The  quality  of  mercy  is  not  strain'd; 
It  droppeth,  as  the  gentle  rain  from  heaven 
Upon  the  place  beneath:  it  is  twice  bless 'd; 
It  blesseth  him  that  gives  and  him  that  takes : 
'Tis  mightiest  in  the  mightiest;  it  becomes 
The  throned  monarch  better  than  his  crown: 
His  scepter  shows  the  force  of  temporal  power, 
The  attribute  to  awe  and  majesty, 
Wherein  doth  sit  the  dread  and  fear  of  kings ; 
But  mercy  is  above  this  scepter'd  sway; 
It  is  enthroned  in  the  hearts  of  kings ; 
It  is  an  attribute  to  God  himself; 
And  earthly  power  doth  then  show  likest  God's, 
When  mercy  seasons  justice.     Therefore,  Jew, 
Though  justice  be  thy  plea,  consider  this, — 
That,  in  the  course  of  justice,  none  of  us 
Should  see  salvation :  we  do  pray  for  mercy : 
And  that  same  prayer  doth  teach  us  all  to  render 
The  deeds  of  mercy."2 

This  plea  for  mercy  is  so  beautiful  that  any  comment 
thereon  seems  almost  sacrilege.  That  "earthly  power" 
shows  "likest  God's,  when  mercy  seasons  justice,"  is  an 
apt  comparison  of  the  institutions  of  man  with  the  Chris- 
tian idea  for  the  remission  of  the  sins  of  the  guilty,  who 
confess  and  seek  forgiveness.  Mercy,  in  the  legal  accep- 
tation of  the  term,  is  the  total  or  partial  remission  of  the 

Gent,  etc.,  Sec.  72;  Niebuhr,  Hist.  Rome,  vol.  2,  p.  597.  And 
eminent  historians  contend  that  this  law  only  related  to  the 
division  of  the  debtor's  property,  not  his  person,  at  all.  Mon- 
tesquieu, Esprit  des  Lois,  b.  29,  c.  2;  Bynkershoek,  Observ.  Jur. 
Rom.  lib.  1,  c.  1;  Heinneccius,  Antiq.  Rom.  lib.  Ill,  tit.  30,  sec.  4. 

1  Lawson,  Contracts,  supra. 

2  Merchant  of  Venice,  Act  IV,  Scene  I. 


MERCHANT  OF  VENICE.  133 

punishment  to  which  a  person  guilty  of  some  offense  is 
subject  under  the  law.1  In  seeking  mercy,  before  the 
adjudication  of  the  punishment  against  Antonio,  or  before 
the  mandate  or  judgment  of  the  court,  the  Poet  recognized 
the  distinction  in  law,  between  mercy  or  clemency  and 
pardon,  for  a  pardon  is  the  remission  of  punishment,  after 
the  judgment  of  the  court,  while  clemency  or  mercy  is 
extended  before  sentence.2 

Sec.  94.    Antonio's  confession  of  the  bond. — 

"For.     Do  you  confess  the  bond? 
Ant.     I  do."3 

This  course,  on  Portia's  part,  was  consistent  with  the 
practice  frequently  resorted  to,  in  order  to  save  the  time 
and  formality  of  resorting  to  proof,  of  admitting  certain 
facts,  which  are  not  disputed,  without  calling  for  the  proof 
thereof.  The  admission  was  drawn  forth,  in  the  orderly 
manner,  in  the  progress  of  the  cause,  for  until  the  inter- 
est of  the  parties  appeared,  an  admission  would  not  have 
been  availing,  as  the  interest  must  appear  in  all  cases 
at  the  time  of  making  an  admission.4  After  the  interest 
of  the  parties  appeared,  however,  then  the  admission  here 
elicited  had  the  force  and  effect  of  a  regular  judicial 
admission,  which  would  be  conclusive  evidence  against 
the  party  making  it.5 

1  Jacob,   Law   Dictionary. 

2Bouvier's  Law  Dictionary;  Rutherforth,  Inst.  224;  3  Story, 
Con.,  Sec.  1488. 

In  passing  upon  Alcibiades'  defense  of  the  felon,  in  Timon  of 
Athens,  the  Senators  hold  this  conference:  "1  Sen.  Nothing  em- 
boldens sin  so  much  as  mercy. 

2  Sen.  Most  true;  the  law  shall  bruise  him."  (Act  III, 
Scene  V.) 

'Merchant  of  Venice,  Act  IV,  Scene  I. 

4  2  Stark.  41. 

Bl  Greenl.  Evid.  Sec.  205;   2  Campb.  341. 


134  THE  LAW  IN  SHAKESPEARE. 

Sec.  95.    Plea  for  judgment. — 

"Shy.     .     .     .     The  pound  of  flesh,  which  I  demand 
of  him, 

Is  dearly  bought,  is  mine,  and  I  will  have  it : 
If  you  deny  me,  fie  upon  your  law. 
There  is  no  force  in  the  decrees  of  Venice: 
I  stand  for  judgment:  answer;  shall  I  have  it?"1 

Shylock's  plea  for  judgment,  based  upon  the  admission 
or  confession  of  the  execution  of  his  bond,  was  properly 
urged,  from  a  legal  standpoint — if  the  legality  of  his  bond 
were  admitted — since  the  judgment  or  conclusion  of  the 
law,  upon  the  facts  found,  or  admitted,  follows  naturally, 
in  the  orderly  course  of  legal  proceedings,  upon  the  fact 
of  such  admission.2  The  form  of  judgment  to  which  a 
legal  bond,  or  other  written  obligation  for  the  payment  of 
money  would  entitle  one  to  recover,  would  be  what  is 
known  as  a  judgment  quod  recuperet,  that  is,  a  judgment 
in  favor  of  the  plaintiff  that  he  do  recover,  rendered  when- 
ever he  has  prevailed  upon  an  issue  of  fact,  duly  estab- 
lished, or  admitted  by  the  opposing  party  to  the  cause.3 
A  judgment  on  confession  is  called  a  judgment  cognovit 
actionem,  and  such  judgment  is  properly  rendered  when- 
ever #the  defendant,  instead  of  contesting  the  right  of  re- 
covery, confesses  the  plaintiff's  action.4  But,  of  course, 
on  grounds  of  public  policy,  a  judgment  would  not  be  ren- 
dered in  a  court  of  justice,  which  has  for  its  object,  the 
taking  of  a  human  life,  according  to  civil  contract,  for 
the  concern  of  the  state  for  the  lives  of  its  citizens  would 
prevent  the  enforcement  of  such  a  judgment  and  the  con- 
tract would  be  held  to  be  illegal  because  of  its  being  in 
contravention  of  good  morals.5 

1  Merchant  of  Venice,  Act  IV,  Scene  I. 
2Tidd  Prac.  930. 
8  Stephen,  PI.  126. 
4  Freeman  on  Judgments. 
5Chitty,  Com.  Law,  215,  217,  228,  250. 

Commenting  upon  Shylock's  attitude,  as  piesented  in  this  verse, 
as  that  of  the  seeker  after  justice  in  all  climes  and  under  all 


MERCHANT  OF  VENICE.  135 

Sec.  96.    Justice  of  Shylock's  plea. — 

"Por.     ...     I  have  spoke  thus  much 
To  mitigate  the  justice  of  thy  plea; 
Which,  if  thou  follow,  this  strict  court  of  Venice, 
Must  needs  give  sentence  'gainst  the  merchant  there."1 

This  recognition  of  the  legality  of  the  bond,  as  the  only 
alternative  of  the  court,  if  the  condition  of  the  bond  was 
insisted  upon,  is  no  doubt  followed,  because  of  the  dra- 
matic effect  produced  and  the  anxiety  created  as  to  the 
ultimate  issue  of  the  cause,  after  due  recognition  of  the 
rights  of  the  Jew,  by  the  Court.  Of  course,  as  shown  by 
Von  Ihering,2  the  recognition  of  the  legality  of  the  bond, 
in  the  first  instance,  by  the  Court,  was,  from  a  strictly 
legal  standpoint,  all  wrong,  as  the  fact  that  it  had  for  its 
object  the  taking  of  human  life,  or  the  serious  maiming 
of  a  human  being,  made  its  object  so  far  counter  to  good 
morals  and  against  public  policy,  as  to  have  justified  the 
Court  in  holding  that  it  was  absolutely  void;  but  as  this 
would  not  have  had  the  dramatic  effect  of  holding  the 
interest  and  creating  the  same  anxiety  in  the  final  on- 
come  of  the  trial,  as  the  course  pursued  by  the  Poet,  it  is 
doubtless  true  that  from  a  poetic  standpoint  the  sacrifice 
of  real  justice  and  strictly  legal  rules,  for  the  more  strik- 
ing system  of  jurisprudence  adopted,  was  justified,  in  order 
to  subserve  the  object  had  in  view. 


conditions,  Dr.  Von  Ihering,  observed:  "It  is  hatred  and  revenge 
that  take  Shylock  before  the  court  to  cut  his  pound  of  flesh  out 
of  Antonio's  body;  but  the  words  which  the  Poet  puts  into  his 
mouth  are  as  true  in  it  as  in  any  other.  It  is  the  language  which 
the  wounded  feeling  of  legal  right  will  speak  at  all  times  and  in 
all  places;  the  power,  the  firmness  of  the  conviction  that  law 
must  remain  law,  the  lofty  feeling  and  pathos  of  the  man  who 
is  conscious  that,  in  what  he  claims,  there  is  question,  not 
only  of  his  person,  but  of  the  law."  Von  Ihering's  Struggle  for 
Law,  p.  80. 

1  Merchant  of  Venice,  Act  IV,  Scene  I. 

2  Von  Ihering's  Struggle  for  Law,  p.  81. 


136  THE  LAW  IN  SHAKESPEARE. 

Sec.  97.    "I  crave  the  law."— 

"Shy.     My  deed's  upon  my  head;  I  crave  the  law, 
The  penalty  and  forfeit  of  my  bond."1 

Commenting  on  the  tragic  expression,  as  one  who  deeply 
felt  his  wounded  legal  right,  Von  Ihering  remarks  of  this 
phrase:  "In  these  four  words  the  Poet  has  described  the 
relation  of  law,  in  the  subjective,  to  law  in  the  objective 
sense  of  the  term  and  the  meaning  of  the  struggle  for 
law  in  a  manner  better  than  any  philosopher  of  the  law 
could  have  done  it.  These  four  words  change  Shylock's 
claim  into  a  question  of  the  law  of  Venice.  To  what 
mighty,  giant  dimensions,  does  not  the  weak  man  grow, 
when  he  speaks  these  words:  It  is  no  longer  the  Jew  de- 
manding his  pound  of  flesh:  it  is  the  law  of  Venice  itself 
knocking  at  the  door  of  Justice;  for  his  rights  and  the 
law  of  Venice  are  one  and  the  same;  they  both  stand  or 
fall  together."2 

Sec.    98.    Tender  in  open  court. — 

"Por.     Is  he  not  able  to  discharge  the  money? 

Bass.     Yes,  here  I  tender  it  for  him,  in  the  court; 
Yea,  twice  the  sum:  if  that  will  not  suffice, 
I  will  be  bound  to  pay  it  ten  times  o'er, 
On  forfeit  of  my  hands,  my  head,  my  heart: 
If  this  will  not  suffice,  it  must  appear 
That  malice  bears  down  truth."3 

Bassanio's  act,  accompanied  with  the  money  and  these 
words:  "Here  I  tender  it  for  him  in  the  court,"  would 
have  the  force  and  effect  of  a  legal  judicial  tender  of  the 
money  due  to  Shylock,  for  since  the  debt  incurred  by 
Antonio  was  really  on  account  of  Bassanio,  he  would  have 
sufficient  authority  from  the  debtor  to  appear  for  him 
and  make  the  tender.4     The  money  is  generally  required 

1  Merchant  of  Venice,  Act  IV,  Scene  I. 

sVon  Ihering's  Struggle  for  Law    (5th  Ed.),  81. 

3  Merchant  of  Venice,  Act  IV,  Scene  I. 

4  Coke,   Litt.    206;    2   Maule   &   S.    86. 


MERCHANT  OF  VENICE.  137 

to  be  present  and  actually  offered,  but  of  course  the  refusal 
of  Shy  lock  to  receive  the  money  amounted  in  law  to  a 
legal  waiver  of  the  actual  production  of  the  money.1 

The  Court's  decision  as  to  the  effect  of  this  tender,  how- 
ever, in  the  course  of  the  decision,  as  deriving  Shylock 
of  his  principal,  was  not  according  to  the  law  of  England, 
as  the  only  result  attached  to  a  rejected  tender  was  to  put 
a  stop  to  accruing  damages  and  interest  on  the  debt  ten- 
dered and  refused.2 

Sec.  99.    Effect  of  legal  precedent. — 

"Bass Wrest  once  the  law  to  your  authority: 

To  do  a  great  right,  do  a  little  wrong; 
And  curb  this  cruel  devil  of  his  will. 

Por.     It  must  not  be;  there  is  no  power  in  Venice 
Can  alter  a  decree  established: 
'Twill  be  recorded  for  a  precedent; 
And  many  an  error,  by  the  same  example, 
Will  rush  into  the  state:  it  cannot  be."3 


*2  Maule  &  S.  86;    2  Parsons,  Contr.   154. 
2  3  Q.  B.  915;    11  M.  &  W.  Exch.  356. 

Ophelia  and  her  Father,  Polonius,  are  made  to  discuss  the  legal 
subject  of  a  tender,  in  Hamlet,  as  follows: 
"Oph.    He  hath,  my  lord,  of  late,  made  many  tenders 

Of  his  affection  to  me. 
Pol.    Affection?  puh:   you  speak  like  a  green  girl, 
Unsifted  in  such  perilous  circumstance. 
Do  you  believe  his  tenders,  as  you  call  them? 
Oph.    I  do  not  know,  my  lord,  what  I  should  think. 
Pol.     Marry,  I'll  teach  you:  think  yourself  a  baby; 
That  you  have  ta'en  these  tenders  for  true  pay 
Which  are  not  sterling.     Tender  yourself  more  dearly; 
Or  (not  to  crack  the  wind  of  the  poor  phrase, 
Wronging  it  thus,)   you'll  tender  me  a  fool." 

(Act    I,   Scene   III.) 
Tender  is  referred  to  in  the  LXXXIII'  Sonnet,  as  follows: 
"I  found,  or  thought  I  found,  you  did  exceed 
The   barren    tender   of   a   poet's   debt."     (3,   4.) 

8  Merchant  of  Venice,  Act  IV,  Scene  I. 


138  THE  LAW  IN  SHAKESPEARE. 

The  Poet  here  refers  to  the  doctrine  of  stare  decisis,  and 
the  sacredness  of  established  precedents  in  the  law,  which 
have  been  truly  said  to  be  the  real  "bulwarks"  of  the  law. 
From  the  time  of  Edward  III  to  that  of  Elizabeth,  the 
inviolability  of  established  precedents  was  inculcated  by 
the  courts  and  lawyers  with  more  zeal,  perhaps,  than  at 
any  other  period  in  English  history.1  Speaking  of  the 
necessity  of  adherence  to  precedents,  in  the  administra- 
tion of  the  law,  Chancellor  Kent  said :  "A  solemn  decision 
upon  a  point  of  law,  arising  in  any  given  case,  becomes  an 
authority  in  a  like  case,  because  it  is  the  highest  evidence 
which  we  can  have  of  the  law  applicable  to  the  subject, 
and  the  judges  are  bound  to  follow  that  decision  so  long 
as  it  stands  unreversed,  unless  it  can  be  shown  that  the 
law  was  misunderstood  or  misapplied  in  that  particular 
case.  If  a  decision  has  been  made,  upon  solemn  argument 
and  mature  deliberation,  the  presumption  is  in  favor  of 
its  correctness ;  and  the  community  have  a  right  to  regard 
it  as  a  just  declaration  or  exposition  of  the  law,  and  to 
regulate  their  actions  and  conduct  by  it.  .  .  .  If  judi- 
cial decisions  were  to  be  lightly  disregarded  we  should  dis- 
turb and  unsettle  the  great  landmarks  of  property."2 
Hence,  the  legal  conclusion  of  the  court,  on  the  sugges- 
tion that  the  settled  rules  of  law  be  set  aside  for  this  par- 
ticular case,  that  it  could  not  be ;  "  'Twill  be  recorded  for 
a  precedent ;  and  many  an  error  by  the  same  example  will 
rush  into  the  state,"  since  "there  is  no  power  in  Venice 
can  alter  a  decree  established,"  evidences  the  fact  that  the 
Poet  made  the  same  adherence  to  precedent,  which  had 
always  obtained  in  England,  prevalent  in  Venice,  too. 

1Kent  said:  "Throughout  the  whole  period  of  the  Year  Books, 
from  the  time  of  Edward  III,  to  that  of  Henry  VII,  the  judges 
were  incessantly  urging  the  sacredness  of  precedents  and  that 
a  Counsellor  was  not  to  be  heard  who  spoke  against  them,  and 
that  they  ought  to  judge  as  the  ancient  sages  taught."  1  Kent's 
Comm.   (12th  Ed.)   476;   33  Hen.  VI,  41. 

21  Kent's  Com.   (12  Ed.),  476. 


MERCHANT  OF  VENICE.  139 

Sec.  100.    Portia's  judgment  on  the  bond. — 

"Por.     Why,  this  bond  is  forfeit; 

And  lawfully  by  this  the  Jew  may  claim 

A  pound  of  flesh,  to  be  by  him  cut  off 

Nearest  the  merchant's  heart:     .... 

For  the  intent  and  purpose  of  the  law 

Hath  full  relation  to  the  penalty, 

Which  here  appeareth  due  upon  the  bond 

Therefore,  lay  bare  your  bosom 

Are  there  balance  here,  to  weigh  the  flesh?    .... 

Have  by  some  surgeon,  Shylock,  on  your  charge, 

To  stop  his  wounds,  lest  he  do  bleed  to  death 

It  is  not  so  expres'd;  but  what  of  that? 

'Twere  good  you  do  so  much  for  charity.     .... 

A  pound  of  that  same  merchant's  flesh  is  thine ; 

The  court  awards  it  and  the  law  doth  give  it 

And  you  must  cut  this  flesh  from  off  his  breast; 

The  law  allows  it  and  the  court  awards  it 

Tarry  a  little;  there  is  something  else. — 

This  bond  doth  give  thee  here  no  jot  of  blood; 

The  words  expressly  are,  a  pound  of  flesh : 

Take  then  thy  bond ;  take  thou  thy  pound  of  flesh ; 

But,  in  the  cutting  it,  if  thou  dost  shed 

One  drop  of  Christian  blood,  thy  lands  and  goods 

Are,  by  the  laws  of  Venice,  confiscate 

Unto  the  state  of  Venice. 
Shy.     Is  that  the  law? 
Por.     Thyself  shalt  see  the  act: 

For,  as  thou  urgest  justice,  be  assur'd, 

Thou  shalt  have  justice,  more  than  thou  desir'st.  .  .  . 
Shy.     I  take  this  offer  then; — pay  the  bond  thrice  and 

let  the  Christian  go. 
Bass.     Here  is  the  money. 
Por.     Soft; 

The  Jew  shall  have  all  justice; — soft:  no  haste; — 

He  shall  have  nothing  but  the  penalty 

Therefore,  prepare  thee  to  cut  off  the  flesh. 

Shed  thou  no  blood;  nor  cut  thou  less,  nor  more, 

But  just  a  pound  of  flesh:  if  thou  tak'st  more, 

Or  less,  than  a  just  pound — be  it  but  so  much 

As  makes  it  light  or  heavy,  in  the  substance, 

Or  the  division  of  the  twentieth  part 

Of  one  poor  scruple ;  nay,  if  the  scale  do  turn 

But  in  the  estimation  of  a  hair, — 


140  THE  LAW  IN  SHAKESPEARE. 

Thou  diest  and  all  thy  goods  are  confiscate 

"Why  doth  the  Jew  pause?  Take  thy  forfeiture. 
Shy.     Give  me  my  principal  and  let  me  go. 
Bass.     I  have  it  ready  for  thee ;  here  it  is. 
Por.     He  hath  refused  it  in  the  open  court; 

He  shall  have  merely  justice  and  his  bond 

Shy.     Shall  T  not  have  barely  my  principal? 
Por.     Thou  shalt  have  nothing  but  the  forfeiture, 

To  be  so  taken  at  thy  peril,  Jew. 
Shy.     Why  then,  the  devil  give  him  good  of  it, 

I'll  stay  no  longer  question. 
Por.     Tarry,  Jew, 

The  law  hath  yet  another  hold  on  you. 

It  is  enacted  in  the  laws  of  Venice, 

If  it  be  proved  against  an  alien, 

That  by  direct  or  indirect  attempts, 

He  seek  the  life  of  any  citizen, 

The  party,  'gainst  the  which  ne  doth  contrive, 

Shall  seize  one-half  his  goods;  the  other  half 

Comes  to  the  privy  coffer  of  the  state; 

And  the  offender's  life  lies  in  the  mercy 

Of  the  duke  only,  'gainst  all  other  voice. 

In  which  predicament,  I  say  thou  stand'st: 

For  it  appears,  by  manifest  proceeding, 

That  indirectly  and  directly  too, 

Thou  has  contrived  against  the  very  life 

Of  the  defendant ;  and  thou  ha'st  incurr'd 

The  danger  formerly  by  me  rehearsed. 

Down,  therefore,  and  beg  mercy  of  the  duke."1 

Subjected  to  critical  legal  analysis,  it  would  seem  that 
injustice  was  done  to  Shylock,  by  this  judgment.  The 
validity  of  the  bond,  in  the  first  instance,  ought  not  to 
have  been  recognized,  but  after  its  recognition,  by  the 
Court,  it  ought  not,  subsequently  to  have  been  invalidated 
by  such  cunning  as  was  indulged  in  by  Portia.  The  de- 
cision is  presented  as  the  only  possible  one,  before  the 
law,  as  no  one  in  Venice  doubted  the  validity  of  the  bond. 
Antonio,  his  friends,  the  court  and  all  were  agreed  that  the 
bond  gave  him  a  legal  right  and  after  the  decision  of  the 
Court  to  this  effect,  and  the  entire  assembly  regarded  his 

1  Merchant  of  Venice,  Act  IV,  Scene  I. 


MERCHANT  OF  VENICE.  141 

case  as  won,  then  the  Court  struck  down  the  previously 
recognized  right,  by  the  strategem  that  the  bond  gave 
him  no  blood,  but  only  the  pound  of  flesh.  Of  course, 
since  there  could  be  no  flesh  without  blood,  in  recogniz- 
ing the  right  to  take  the  flesh,  the  Jew  legally  would  have 
had  all  incidental  powers  necessary  to  the  full  enjoyment 
of  the  affirmative  legal  right  and  could  draw  the  blood, 
as  a  necessary  incident  of  his  right  to  take  the  flesh,  -for 
without  it,  his  right  could  not  be  exercised.  -  It  was  axiom- 
atic, at  common  law,  that  where  one  had  a  legal  right, 
he  had  all  the  remedies  necessary  to  a  full  enjoyment  of 
that  right,  for  otherwise  the  right  itself  would  be  without 
avail. 

Viewing  the  humbled  Jew,  after  the  rendition  of  this 
decision,  with  all  the  pathos  that  the  picture  of  the  Poet 
presents,  as  the  disappointed  seeker  after  justice,  who  had 
such  entire  faith  in  law  and  the  justice  of  his  cause,  would 
naturally  suggest  to  the  scientific  jurist,  Dr.  Von  Ihering, 
in  his  Struggle  for  Law,  observed  of  this  trial  scene: 
"When  he  finally  succumbs  under  the  weight  of  the 
judge's  decision,  who  wipes  out  his  rights  by  a  shocking 
piece  of  pleasantry;  when  we  see  him  pursued  by  bitter 
scorn,  bowed,  broken,  tottering  on  his  way,  who  can  help 
feeling  that  in  him  the  law  of  Venice  is  humbled ;  that  it 
is  not  the  Jew,  Shylock,  who  moves  painfully  away,  but 
the  typical  figure  of  the  Jew  in  the  middle  ages,  that 
pariah  of  society,  who  cried  in  vain  for  justice?  His  fate 
is  eminently  tragic,  not  because  his  rights  are  denied  him, 
but  because  he,  a  Jew,  of  the  middle  ages  has  faith  in  the 
law — we  might  say  just  as  if  he  were  a  Christian — a  faith 
in  the  law  firm  as  a  rock,  which  nothing  can  shake  and 
which  the  judge  himself  feeds,  until  the  catastrophe  breaks 
upon  him  like  a  thunder  clap;  dispels  the  illusion  and 
teaches  him  that  he  is  only  the  despised  medieval  Jew  to 
whom  justice  is  done  by  defrauding  him."1 

xVon  Ihering's  Struggle  for  Law,  pp.  81,  82  (5th  Ed.).     Speak- 
ing further  of  this  decision,  in  a  footnote,  the  learned  Von  Ihering 


142  THE  LAW  IN  SHAKESPEARE. 

also  observed:  "The  eminently  tragic  interest  which  we  feel  in 
Shylock  I  find  to  have  its  basis  precisely  in  the  fact  that  justice 
is  not  done  him;  for  this  is  the  conclusion  to  which  the  lawyer 
must  come.  The  Poet  is,  of  course  free  to  build  up  his  own  sys- 
tem of  jurisprudence,  and  we  feel  no  reason  to  regret  that  Shake- 
speare has  done  so  here;  or  rather  that  he  has  changed  the  old 
fable  in  nothing.  But  when  the  jurist  submits  the  question  to 
a  critical  examination,  he  can  only  say  that  the  'bond  was,  in 
itself,  null  and  void  because  its  provisions  were  contrary  to  good 
morals.  The  Judge  should,  therefore  have  refused  to  enforce  its 
terms  on  this  ground  from  the  first.  But  as  he  did  not  do 
so,  .  .  .  but  admitted  its  validity,  it  was  a  wretched  subter-; 
fuge,  a  miserable  piece  of  pettifoggery,  to  deny  the  man  whose 
right  he  had  already  admitted,  to  cut  a  pound  of  flesh  from  the 
living  body,  the  right  to  the  shedding  of  the  blood,  which  neces- 
sarily accompanied  it.  Just  as  well  might  the  judge  deny  to  the 
person  whose  right  to  an  easement  he  acknowledged,  the  right  to 
leave  footmarks  on  the  land,  because  this  was  not  expressly 
stipulated  for  in  the  grant."  Von  Ihering's  Struggle  for  Law, 
(5th  Ed.)  pp.  82,  83. 

Notwithstanding  the  total  absence  of  justice,  when  judged  by 
strict  legal  rules  and  formulas,  in  this  judgment,  such  writers  as 
Doctor  Hudson,  in  commenting  on  this  trial  scene,  speaking  of 
the  judgment,  said:  "In  her  judge-like  gravity  and  dignity  of 
deportment;  in  the  extent  and  accuracy  of  her  legal  knowledge; 
in  the  depth  and  appropriateness  of  her  moral  reflections;  in  the 
luminous  order,  the  logical  coherence,  and  the  beautiful  trans- 
parency of  her  thoughts,  she  almost  rivals  our  Chief  Justice 
Marshall." 

In  the  gravity  and  deportment  and  the  beautiful  and  dramatic 
presentation  of  the  climax,  this  may  be  true,  but  surely  not  in 
the  "extent  and  accuracy  of  her  legal  knowledge."  Chief  Jus- 
tice Marshall's  judgments  were  according  to  established  legal 
precedents  and  rules  of  law;  by  his  opinions  property  rights  were 
sustained  and  not  stricken  down  by  pleasantries  or  subterfuges. 
Of  what  avail  is  it,  to  a  litigant,  whose  rights  have  been  denied 
him,  by  improper  legal  standards,  that  the  jurist  who  pronounced 
the  judgment  was  becomingly  garbed,  or  pronounced  the  opinion, 
striking  down  his  rights,  with  eloquence  and  sophistry?  The 
only  thing  a  litigant  cares  about  is  securing  a  righteous  judgment 
in  his  cause.  If  he  loses  his  cause,  it  is  immaterial  that  the 
executioner  of  his  rights  was  of  noble  mien,  in  the  denial  of  the 
law,  as  applied  to  his  cause.  The  becoming  picture  of  Portia, 
presented  by  the  Poet,  viewed  by  the  lawyer,  fails  to  attract,  as 


MERCHANT  OF  VENICE.  143 

Sec.  101.    Commutation  of  punishment. — 

"Duke.     That  thou  shalt  see  the  difference  of  our  spirit, 
I  pardon  thee  thy  life,  before  thou  ask  it: 
For  half  thy  wealth,  it  is  Antonio's; 
The  other  half  comes  to  the  general  state, 
Which  humbleness  may  drive  unto  a  fine."1 

A  pardon  is  an  act  of  grace,  from  the  power  intrusted 
with  the  execution  of  the  laws,  which  exempts  the  one 
upon  whom  it  is  bestowed  from  the  punishment  inflicted 
for  the  crime  committed.2  The  pardon,  here,  unasked, 
of  the  life  of  Shylock,  forfeited  by  the  law,  for  the  offense 
he  had  committed  in  conniving  at  the  life  of  a  human 
being,  is  a  familiar  form  of  extending  the  pardoning 
power.  As  a  pardon  does  not  generally  affect  the  rights 
of  any  other  whose  status  would  be  affected  thereby,  if  it 
operated  upon  other  than  the  criminal,3  the  Duke  recog- 
nizes that  the  right  of  Antonio  to  the  half  of  the  culprit's 
property  shall  not  be  affected  by  the  pardon. 

The  Duke's  promise  to  Shylock  that  "humbleness" 
might  "drive  into  a  fine"  the  forfeiture  of  the  other  half 
of  his  estate,  is,  virtually,  a  promise  of  a  commutation  of 
his  punishment,  in  this  regard,  by  changing  the  punish- 
ment of  a  forfeiture  of  half  of  his  estate,  into  a  less 
severe  one,  by  way  of  a  fine.4 


does  the  dejected  picture  of  the  poor  old  Jew,  denied  his  sup- 
posed legal  rights  for  improper  reasons.  Such  a  judgment  is  not 
regarded  with  rapt  admiration  by  those  who  appreciate  the  ma- 
jesty of  the  law,  nor  is  the  jurist  pronouncing  such  an  opinion 
surrounded  by  a  legal  halo,  but  as  the  recipient  of  an  erroneoup 
judgment  and  one  whose  cause  was  wrecked  upon  the  shoals  of 
judicial  shipwreck,  the  Jew  is  regarded  with  commiseration, 
rather  than  the  contempt  that  the  laity  heap  upon  him. 

1  Merchant  of  Venice,  Act  IV,  Scene  I. 
"4  Bl.  Com.  400;  1  Park,  Cr.  Cas.  47. 
•10  Johns.  (N.  Y.)  232. 
*Bouvier's  Law  Dictionary. 


144  THE  LAW  IN  SHAKESPEARE. 

Sec.  102.    Conveyance  in  use.— 

"Ant.     So  please  my  lord  the  duke,  and  all  the  court, 
To  quit  the  fine  for  one-half  of  his  goods; 
I  am  content,  so  he  will  let  me  have 
The  other  half  in  use, — to  render  it, 
Upon  his  death,  unto  the  gentleman 
That  lately  stole  his  daughter: 
Two  things  provided  more, — That,  for  this  favor, 
He  presently  become  a  Christian ; 
The  other  that  he  do  record  a  gift, 
Here  in  the  court  of  all  he  dies  possess'd, 
Unto  his  son  Lorenzo,  and  his  daughter."1 

A  use,  in  English  law,  was  a  confidence  reposed  in  the 
tenant  of  land  that  he  should  dispose  of  the  land  accord- 
ing to  the  intention  of  the  cestui  que  use,  or  him  to  whose 
use  it  was  granted,  and  suffer  him  to  take  the  profits.  The 
use  was  the  benefit  or  profit  of  the  land  held  by  the  trus- 
tee for  the  benefit  of  the  beneficiary.  He  to  whose  use 
or  benefit  the  trust  was  intended  was  called  the  cestui  que 
use.2  Before  the  Statute  of  Uses,  in  the  reign  of  Henry 
VIII,  uses  were  customarily  used  for  the  purpose  of  mak- 
ing devises  of  land.3  By  this  statute  the  use  was  trans- 
ferred into  possession,  or  the  possession  to  the  use,  and 
the  use  was  then  called  a  vested  use.4  After  the  statute, 
as  before,  a  land  owner  could  still  make  a  conveyance  to 
use,  and  the  use  could  change  from  one  to  another,  as 
before  the  statute,  but  the  statute  had  the  effect  of  vest- 
ing the  legal  estate  and  giving  full  effect  to  the  transfer 
or  disposition.5 

This  means  of  conveying  the  half  of  his  estate,  there- 
fore, proposed  by  Antonio,  according  to  the  English  law, 
was  a  perfectly  proper  conveyance  by  which  half  his  estate 
could  be  devised,6  and  the  deed  of  gift,  as  a  further  exac- 

1  Merchant  of  Venice,  Act  IV,  Scene  I. 

3Tiedeman,  R.  P.  (3d  Ed.)  Ch.  Uses  and  Trusts. 

•IV  Reeve's  History  Eng.  Law,  pp.  363,  366. 

4  27  Henry  VIII,  c.  10. 

6 IV  Reeve's  History  Eng.  Law,  p.  366. 

•  Ante  idem. 


MERCHANT  OF  VENICE.  145 

tion,  by  means  of  the  gift  of  land  llberum  maritagium,1 
would  furnish  a  further  legal  safeguard  for  the  vesting 
of  the  estate  in  the  daughter  and  son  in  law  of  the  Jew. 

Sec.  103.    Deed  of  gift.— 

"Duke.     He  shall  do  this;  or  else  I  do  recant 
The  pardon  that  I  late  pronounced  here. 

Por.     Art  thou  contented,  Jew;  what  dos't  thou  say? 

Shy.     I  am  content. 

Por.     Clerk,  draw  a  deed  of  gift. 

Shy.     I  pray  you,  give  me  leave  to  go  from  hence; 
I  am  not  well;  send  the  deed  after  me, 
And  I  will  sign  it."2 

The  exaction  of  the  deed  of  gift,  as  the  price  of  Shy- 
lock's  freedom  from  punishment,  comes  dangerously  near 
to  duress,  but  the  validity  of  the  deed  on  this  ground  would 
not  be  apt  to  be  presented,  so  long  as  the  withdrawal  of  the 
pardon  threatened  the  grantor  in  the  deed. 

A  deed  is  generally  defined  to  be  any  writing,  contain- 
ing a  contract,  sealed  and  delivered  by  the  parties  thereto.3 
A  deed  of  gift,  unlike  a  deed  of  "grant,  bargain  and  sale," 
is  based  only  on  a  good  consideration,  such  as  love  and 
affection,  as  distinguished  from  a  valuable  consideration, 
such  as  money  or  property.4  At  an  early  period  in  Eng- 
lish history,  land  was  conveyed  without  a  writing,  by  overt 
acts  and  ceremonies,  taking  the  place  of  formal  writing, 
but  by  the  statute  of  frauds  and  perjuries,5  any  contract 
or  sale  of  lands  was  required  to  be  in  writing,  signed  by 
the  grantor. 

Deeds  or  writings,  in  English  law,  date  principally  from 
the  Norman  Conquest.6  Under  the  reign  of  Henry  Til, 
there  were  various  deeds  of  gift  in  vogue,  all  of  which  are 

1 IV  Reeves'  History  Eng.  Law,  p.  90. 

2  Merchant  of  Venice,  Act  IV,  Scene  I. 

3  Tiedeman,  R.  P.   (3d  Ed.)   Sec.  854;   2  Washburn,  R.  P.  553. 
*  Ante  idem. 

3  29  Chas.  II,  Ch.  3. 

"1  Reeves'  History  Eng.  Law,  p.  336. 


146  THE  LAW  IN  SHAKESPEARE. 

described  by  Bracton,1  the  most  common  of  these  being 
called  deeds  of  gift  libera  et  pura  donatio  and  those  sub 
conditione. 

The  Poet  shows  a  familiarity  with  the  various  kinds  of 
deeds  of  gift,  for  as  Antonio  had  exacted  that  the  deed 
should  be  "unto  his  son  Lorenzo  and  his  daughter,"  it 
would  come  within  the  class  of  deeds  made  on  or  after  the 
espousal,  by  some  friend  or  relative  of  the  bride,  whereby 
the  land  was  given  to  them  jointly,  with  such  condition 
that  although  the  wife  should  have  no  heirs,  the  husband 
would  possess  it,  per  legem  Angliae.2 

bracton,  10b;  II  Reeve's  History  Eng.  Law,  p.  83. 
2  Bracton,  22b;   II  Reeve's  History  Eng.  Law,  p.  91. 

In  delivering  this  deed  of  gift,  to  Lorenzo,  Nerissa  said:  "There 
do  I  give  to  you  and  Jessica,  From  the  rich  Jew,  a  special  deed 
of  gift,  After  his  death  of  all,  he  dies  possess'd  of."  (Merchant 
of  Venice,  Act  IV,  Scene  I.) 


CHAPTER  X. 

"AS  YOU  LIKE   IT." 

Sec.  104. 

Primogeniture. 

105. 

Bequest. 

106. 

Heir. 

107. 

Testament. 

108 

"Be  It  Known  By  These  Presents," 

109. 

Bankrupt. 

110. 

Forfeiture  of  land. 

111. 

Writ  Extendi  facias. 

112. 

Vacations  of  Court. 

113. 

Jointure. 

114 

Acts  by  Attorneys. 

115. 

Examining   Justice. 

Sec.  104.    Primogeniture.— 

"Orl.  The  courtesy  of  nations  allows  you  my  better,  in 
that  you  are  the  first-born;  but  the  same  tradition 
takes  not  away  my  blood,  were  there  twenty  brothers 
betwixt  us;  I  have  as  much  of  my  father  in  me  as 
you;  albeit,  I  confess,  your  coming  before  me  is 
nearer  to  his  reverence."1 

The  law  of  primogeniture  or  the  right  of  the  first-born 
under  the  English  law  is  here  referred  to,  as  inconsistent 
with  the  natural  rights  of  the  younger  child.  Under  the 
law  as  it  existed  in  England,  the  oldest  son  acquired  title 
to  the  parent's  lands,  in  preference  to  the  younger  chil- 
dren.2 This  is  noted,  by  Orlando,  as  a  legal  advantage 
only,  for  he  vaunts  that  he  has  "as  much  of  my  father 
in  me  as  you;"  that  the  arrival  first  would  not  affect  his 
blood  and  that  he  is,  in  other  respects  his  equal,  if  not  his 
superior. 

*As  You  Like  It,  Act  I,  Scene  I. 

8  This  unjust  distinction  has  been  very  generally  abolished  in 
the  United  States.     Bouvier's  Law  Dictionary. 

Clifford  asks  Edward,  in  3'  Henry  VI:  "Clif.  And  reason, 
too;  Who  should  succeed  the  father,  but  the  son?"  (Act  II, 
Scene  II.) 

(147) 


148  THE  LAW  IN  SHAKESPEARE. 

Sec.  105.    Bequest. 

"Orl.  As  I  remember,  Adam,  it  was  upon  this  fashion 
bequeathed  me ;  By  will,  but  a  poor  thousand  crowns, 
and,  as  thou  say'st,  charged  my  brother,  on  his  bless- 
ing, to  breed  me  well;  and  there  begins  my  sadness."1 

A  bequest,  is  a  gift  of  personal  property,  by  will,  in  con- 
tradistinction to  a  devise  of  real  estate.2  A  sum  of  money 
could  not  be  devised,  but  such  sum  would  be  "bequeathed" 
instead. 


1  As  You  Like  It,  Act  I,  Scene  I. 
2Wigram,  Wills,  11. 

In  King  John,  the  Mother  of  the  King,  said  to  Phillip: 
"Eli.     I  like  thee  well;   Wilt  thou  forsake  thy  fortune, 
Bequeath   thy  land   to   him,   and   follow   me? 
I  am  a  soldier  and  now  bound  to  France."     (Act  I,  Scene  I.) 
On  regaining  his  armour,  Pericles,  Prince  of  Tyre,  identifies  it 
in  the   hands  of  the  fishermen  as   the  armour  that   "my   dead 
father    did    bequeath    to    me,"    as    a    "part    of    mine    heritage." 
(Act  II,  Scene  I.) 

After  determining  to  die,  when  Collatine  shall  know  the  cause 
of  her  untimely  death,  Lucrece  concludes: 

"My  stained  blood  to  Tarquin   I'll  bequeath, 
Which  by  him  tainted  shall  for  him  be  spent, 
And  as  his  due,  writ  in  my  testament."     (1181,  1183.) 
In  language  entirely  legal,  in  form,  Lucrece  asks  of  her  hus- 
band, in  her  complaint: 

"Dear  Lord  of  that  dear  jewel  I  have  lost, 
What  legacy  shall   I  bequeath  to  thee?"     (1191,   1192.) 
Further  on  she  is  made  to  say — 
"This  brief  abridgment  of  my  will  I  make; 
My  soul  and  body  to  the  skies  and  ground." 
And  she  appoints  her  husband  executor  of  her  will,  in  this 
language : 

"Thou,  Collatine,  shalt  oversee  this  will."     (1198,  1199,  1205.) 
In  the  fourth  Sonnet,  the  Poet  asks  of  Loveliness,  which  Is 
personified : 

"Unthrifty  loveliness,  why  dost  thou  spend 
Upon  thyself  thy  beauty's  legacy? 
Nature's  bequest  gives  nothing,  but  doth  lend, 
And  being  frank,  she  lends  to  those  are  free." 


AS  YOU  LIKE  IT.  149 

Sec.  106.    Heir. 

"Pel.  You  know,  my  father  has  no  child  but  I,  nor  none 
is  like  to  have ;  and,  truly,  when  he  dies,  thou  shalt 
be  his  heir:  for  what  he  hath  taken  away  from  thy 
father,  perforce,  I  will  render  thee  again,  in  affection ; 
by  mine  honor,  I  will."1 

The  use  of  the  word  "heir"  here  is  in  the  sense  of  an 
"heir  apparent,"  or  as  one  who  had  the  indefeasible  right 
to  the  inheritance,  provided  she  outlive  the  ancestor,  her 
father.  In  postponing  the  realization  of  her  promise  to 
convey  the  property  realized  from  her  own  father,  to 
Rosalind,  the  Poet  did  not  overlook  the  contingency  upon 
which  the  heirship  depended,  in  law,  i.  e~,  the  death  of  the 
speaker's  father,  for  it  is  a  legal  axiom  that  no  one  can 
be  the  heir  of  a  living  person,2  hence  the  promise  to  make 
Rosalind  the  "heir"  of  her  own  father  to  the  extent  of 
the  property  taken  from  her  parent,  "when  he  dies." 

"Then  how,  when  nature  calls  thee  to  be  gone, 
What  acceptable  audit  can'st  thou  leave? 
Thy  unused  beauty  must  be  tomb'd  with  thee, 
Which,  used,  lives  th'  executor  to  be." 

1  As  You  Like  It,  Act  I,  Scene  II. 

2  2  Bl.  Comm.  208. 

Antigonus,  in  Winter's  Tale,  referring  to  his  three  daughters, 
said:  "They  are  co-heirs;  and  I  had  rather  glib  myself,  than  they 
should  not  produce  fair  issue."     (Act  II,  Scene  I.) 

And,  in  the  same  play,  Florizel,  son  of  Polixenes,  said  to  his 
father:  "Flo.  .  .  .  From  my  succession,  wipe  me,  father,  I 
am  heir  to  my  affection."     (Act  IV,  Scene  III.) 

In  King  Richard  II,  the  Queen  said  of  Bolingbroke: 
"Queen.    So,   Green,   thou   art  the  midwife   to   my   wo, 
And  Bolingbroke  my  sorrow's  dismal  heir." 

(Act  II,  Scene  II.) 
In  King  Richard  II,  the  Duke  of  York  thus  addressed  Bollingbroke: 
"York.    Great  duke  of  Lancaster,  I  come  to  thee, 

From  plume  pluck'd  Richard;   who,  with  willing  soul, 

Adopts  thee  heir  and  his  high  scepter  yields 

To  the  possession  of  thy  royal  hand."       (Act  IV,  Scene  I.) 


150  THE  LAW  IN  SHAKESPEARE. 

Sec.  107.    Testament. — 

"Orl.  My  father  charged  you  in  his  will  to  give  me  good 
education:  you  have  trained  me  like  a  peasant,  ob- 
scuring and  hiding  from  me  all  gentleman-like  qual- 
ities :  the  spirit  of  my  father  grows  strong  in  me,  and 
I  will  no  longer  endure  it:  therefore  allow  me  such 
exercises  as  may  become  a  gentleman,  or  give  me 
the  poor  allottery  my  father  left  me  by  testament."1 

The  Bishop  of  Ely,  urged  the  King  to  make  war  upon  France, 
as  follows,  in  Henry  V:  "Ely.  Awake  remembrance  of  these 
valiant  dead,  and  with  your  puissant  arm,  renew  their  feats;  you 
are  their  heir,  you  sit  upon  their  throne."     (Act  I,  Scene  II.) 

Describing  the  attempt  to  overthrow  Henry  V,  Mortimer  tells 
Richard  Plantagenet,  in  1'  Henry  VI:  "Mor.  .  .  But  mark; 
as,  in  this  haughty  great  attempt,  They  laboured  to  plant  the 
rightful  heir,  I  lost  my  liberty  and  they  their  lives."  (Act  II, 
Scene  V.) 

Mortimer  tells  Richard  Plantagenet  of  his  heirship,  in  1'  Henry 
VI,  as  follows:  "The  first  begotten,  and  the  lawful  heir  of 
Edward  king,  the  third  of  that  descent."     (Act  II,  Scene  V.) 

Speaking  of  the  treason  of  Horner,  Suffolk  said,  in  2'  Henry 
VI:  "Suff.  His  words  were  these;— that  Richard,  duke  of  York, 
was  rightful  heir  unto  the  English  crown;  and  that  your  majesty 
was  an  usurper."     (Act  I,  Scene  III.) 

Henry  VI,  in  3'  Henry  VI,  thus  deplores  his  condition:    "K.  Hen. 
I  know  not  what  to  say;  my  title's  weak.     Tell  me,  may  not  a 
king  adopt  an  heir? 
York.    What  then? 

K.  Hen.    An  if  he  may,  then  am  I  lawful  king: 
For  Richard,  in  the  view  of  many  lords, 
Resign'd  the  crown  to  Henry  the  Fourth; 
Whose  heir  my  father  was,  and  I  am  his."     (Act  I,  Scene  I.) 

Edward  tells  Queen  Margaret,  in  3'  Henry  VI:  "Edw.  I  am 
his  king  and  he  should  bow  his  knee;  I  was  adopted  heir  by  his 
consent."     (Act  II,  Scene  II.) 

On  learning  that  Richmond  was  on  the  seas,  bent  on  landing 
an  army  in  England,  King  Richard  III,  said:  "K.  Rich.  What 
heir  of  York  is  there  alive,  but  we?  And  who  is  England's  king, 
but  great  York's  heir?  Then,  tell  me,  what  makes  he  upon  the 
seas?"     (Act  IV,  Scene  IV.) 

1  As  You  Like  It,  Act  I,  Scene  I. 


AS  YOU  LIKE  IT.  151 

The  Roman  word  testament,  is  here  used,  in  preference 
to  the  English  word  "will,"  a  synonym  for  the  instrument 
whereby  a  person  alienated  his  estate  after  his  death.  A 
testament  is  the  final  declaration  of  a  person,  with  refer- 
ence to  the  disposition  of  his  property.1  The  older  son, 
having  been  selected  as  the  testamentary  guardian,  of  the 
speaker,  would  naturally  be  charged  with  his  education 
by  the  will  and  the  charge  of  failure  to  discharge  this 
trust  of  the  testator,  was  a  reason  why  the  personal  estate 
of  the  ward  should  be  delivered  over,  even  before  the 
ward  arrived  at  his  maturity,  as  he  could  then  demand  his 
legal  rights,  under  the  father's  will. 

1  Swinburne,  Wills,   Sec.   2. 

In  King  John,  in  the  quarrel  between  Elinor  and  Constance, 
the  following  occurs:     "Eli.     Thou  unadvised  scold,   I  can  pro- 
duce a  will  that  bars  the  title  of  thy  son. 
Const.    Ay,  who  doubts  that?  a  will:   a  wicked  will; 
A  woman's  will;    a  canker'd  grandam's  will." 

(Act  II,  Scene  I.) 
Reference   to   a   testament  is  also   made,   in  As  You   Like   It 
(Act  II,  Scene  I),  as  follows: 
"1  Lord.    O,  yes,  into  a  thousand  similies. 

First,  for  his  weeping  in  the  needless  stream; 
Poor  deer,  quoth  he,  thou  mak'st  a  testament, 
As  worldlings  do,  giving  thy  sum  of  more, 
To  that  which  had  too  much." 
Speaking  of  the  death  of  the  duke  of  York,  at  the  battle  of 
Agincourt,  the  duke  of  Exeter,  said:     "Exe.     .     .     He  threw  his 
wounded  arm  and  kiss'd  his  lips;  and  so,  espoused  to  death,  with 
blood  he  seal'd  a  testament  of  noble-ending  love."     (Henry  V,  Act 
IV,  Scene  VI.) 

Joan  of  Arc,  in  V  Henry  VT,  said  to  Talbot:  "Puc.  .  .  . 
Help  Salisbury  to  make  his  testament:  This  day  is  ours,  as  many 
more  shall  be."     (Act  I,  Scene  V.) 

The  Painter  tells  the  Poet,  in  Timon  of  Athens:  "Pain.  .  . 
performance  is  a  kind  of  will  and  testament,  which  argues  a  great 
sickness  in  his  judgment  that  makes  it."     (Act  V,  Scene  I.) 

On  visiting  Antioch,  Pericles,  Prince  of  Tyre,  thus  refers  to  his 
intention  of  making  his  will: 


152  THE  LAW  IN  SHAKESPEARE. 

Sec.  108.    Be  it  known  by  these  presents. — 

"Le  Beau.     Three  proper  young  men,  of  excellent  growth 

and  presence; — 
"Ros.     With  bills  on  their  necks, — Be  it  known  unto  all 

men  by  these  presents."1 

This  play  upon  the  use  of  the  word  "presence,"  by  the 
substitution  of  the  legal  terms  employed,  shows  the  per- 
fect familiarity  of  the  Poet,  with  all  forms  of  legal  expres- 
sion. The  words,  "Be  It  Known  Unto  All  Men  By  These 
Presents,"  is  a  form  of  legal  terms  used  at  the  commence- 
ment of  legal  documents  and  papers,  such  as  deeds  and 
writs,  by  way  of  warning  or  to  make  the  instrument  im- 
pressive. 

Sec.  109.    Bankrupt.-— 

"1  Lord.     Anon,  a  careless  herd,  full  of  the  pasture, 
Jumps  along  by  him  and  never  stays  to  greet  him ; 
Ay,  quoth  Jaques,  sweep  on,  you  fat  and  greasy  citi- 
zens; 
'Tis  just  the  fashion:  Wherefore  do  you  look 
Upon  that  poor  and  broken  bankrupt  there."2 

A  "bankrupt"  is  a  broken  up,  or  ruined  trader.3  When 
one  becomes  a  bankrupt,  as  his  credit  is  so  far  impaired 
as  to  render  it  impossible  for  him  to  do  business  in  his 

"Per.    I'll   make  my  will  then,  and,   as  sick  men   do, 
Who  know  the  world,  see  heaven,  but  feeling  wo, 
Gripe  not  at  earthly  joys,  as  erst  they  did." 

(Act   I,   Scene   I.) 
1  As  You  Like  It,  Act  I,  Scene  II. 

John  Cade  assumes  the  legal  form  in  addressing  Lord  Say,  in 
2'  Henry  VI,  when  he  says:  "Cade.  .  .  .  Be  it  known  unto 
thee  by  these  presence,  even  the  presence  of  lord  Mortimer,  that 
I  am  the  besom  that  must  sweep  the  court  clean  of  such  filth  as 
thou  art."     (Act  IV,  Scene  VII.) 

Lucius  assumes  the  legal  formula,  in  Titus  Andronicus,  when 
he  says:  "Then,  noble  auditory,  Be  It  Known  to  you,**  etc.  (Act 
V,  Scene  III.) 

2  As  You  Like  It,  Act  II,  Scene  I. 
8  3  Stor.  C.  C.  453;  2  Bl.  Comm.  471. 


AS  YOU  LIKE  IT.  153 

own  name,  where  credit  is  essential,  the  commercial  world 
generally  "sweeps  on"  past  such  bankrupt,  without  the 
former  business  courtesies.  The  Poet's  reference  to  such 
commercialism,  as  the  fashion  of  such  "fat  and  greasy 
citizens,"  to  so  "look"  upon  the  "poor  and  broken  bank- 
rupt" illustrates  the  deep  sympathy,  akin  to  the  "divine 
gift  of  pity,"  which  he  felt  for  the  afflicted  of  his  kind. 

In  Comedy  of  Errors  (Act  IV,  Scene  II)  Dromio  is  made  to 
say:  "Dro.  Time  is  a  very  bankrupt,  and  owes  more  than  he's 
worth  to  season." 

Speaking  of  the  policies  of  King  Richard  II,  Lord  Ross  said  to 
Lord  Willoughby: 

"Ross.    The  earl  of  Wiltshire  hath  the  realm  in  farm, 
Willo.    The  king's  gone  bankrupt,  like  a  broken  man." 

(Act  II,  Scene  I.) 
York  observed,  on  the  death  of  Gaunt,  in  Richard  II: 
"York.     Be  York  the  next  that  must  be  bankrupt  so: 
Though  death  be  poor,  it  ends  a  mortal  wo." 

(Act  II,  Scene  I.) 
In  abdicating  the  throne,  King  Richard  II,  said: 
"K.  Rich.     .     .    .    An  if  my  word  be  sterling  yet  in  England, 
Let  it  command  a  mirror  hither  straight, 
That  it  may  show  me  what  a  face  I  have, 
Since  it  is  bankrupt  of  his  majesty."       (Act  IV,  Scene  I.) 
In  Romeo  and  Juliet   (Act  III,  Scene  II),  Juliet  is  made  to 
say:     "O,  break,  my  heart:  poor  bankrupt,  break  at  once." 

In  Venus  and  Adonis,  it  is  said:  "A  smile  recures  the  wound- 
ing of  a  frown;  But  blessed  bankrupt,  that  by  love  so  thriveth." 

(465,  466.) 

In  The  Rape  of  Lucrece,  covetousness  is  thus  referred  to: 
".     .     .     gaining  more,  the  profit  of  excess 
Is  but  to  surfeit,  and  such  griefs  sustain, 
That  they  prove  bankrupt  in  this  poor-rich  gain."     (138,  140.) 
After  the  perpetration  of  his  crime  Tarquin  is  described: 
"With  heavy  eye,  knit  brow,  and  strengthless  pace, 
Feeble  Desire,  all  recreant,  poor  and  meek, 
Like  to  a  bankrupt  beggar  wails  his  case."     (709,  711.) 
The  following  occurs  in  the  LXVII'  Sonnet: 
"Why  should  he  live,  now  Nature  bankrupt  is, 
Beggar'd  of  blood  to  blush  through  lively  veins?"     (9,  10.) 


154  THE  LAW  IN  SHAKESPEARE. 

Sec.  110.    Forfeiture  of  land. — 

"DukeFr But  look  to  it; 

Find  out  thy  brother,  wheresoe'er  he  is. 

Seek  him  with  candle;  bring  him  dead  or  living 

Within  this  twelvemonth,  or  turn  thou  no  more 

To  seek  a  living  in  our  territory. 

Thy  lands  and  all  things  that  thou  dost  call  thine 

Worth  seizure,  do  we  seize  into  our  hands."1 

This  is  tantamount  to  a  declaration  on  the  part  of  the 
Duke,  to  forfeit  the  title  of  Oliver,  to  his  lands  and  tene- 
ments, unless  he  can  deliver  his  brother,  Orlando,  to  the 
Duke  within  a  year,  and  to  confiscate,  by  seizure  and  at- 
tainture  all  the  lands  of  which  he  is  seized. 

It  was  the  principle  of  the  common  law — still  recog- 
nized in  the  law  of  real  property2 — that  the  paramount 
title  or  right  to  the  property  of  the  citizen  rested  in  the 
sovereign,  or  Government,  and  that  for  just  cause  this 
title  could  be  forfeited,  or  confiscated. 

Sec.  111.    Writ  extendi  facias. — 

"Duke  Fr.     .     .     Well,  push  him  out  of  doors, 
And  let  my  officers  of  such  a  nature 
Make  an  extent  upon  his  house  and  lands."3 

After  declaring  that  he  will  confiscate  and  forfeit  all 
the  lands  of  Oliver,  if  he  does  not  deliver  Orlando  to  him 
within  a  year,  the  Duke,  in  this  verse,  advises  Oliver  to 
turn  the  real  estate,  "his  house  and  lands,"  over  to  the 
proper  officer  of  the  Duke,  under  a  writ  extendi  facias. 
This  is  the  writ,  that,  at  common  law,  issued,  after  for- 
feiture or  judgment,  against  the  lands  and  tenements  of 
the  person  named  in  the  writ.4  Writs  fieri  facias,  issued 
against  the  personal  estate  of  the  debtor,  while  extendi 
facias,  issued  against  his  real  estate  and,  in  this  connec- 


ts You  Like  It,  Act  III,  Scene  I. 
2  Tiedeman,  R.   P.    (3d  Ed.),   Sec.   1. 
»As  You  Like  It,  Act  III,  Scene  I. 
*Bouvier's  Law  Dictionary. 


AS  YOU  LIKE  IT.  155 

tion,  it  is  noteworthy  that  the  Poet  uses  the  terms  prop- 
erly, for  the  writ  is  spoken  of  as  one  properly  reaching 
the  real  estate  of  the  absent  Orlando.1 


Sec.  112.    Vacation  of  court. — 

"Ros I'll  tell  you  who  time  ambles  withal,  who 

time  trots  withal,  who  time  gallops  withal,  and  who 
he  stands  still  withal. 

Orl Who  stays  it  still  withal? 

Ros.  With  lawyers  in  the  vacation:  for  they  sleep  be- 
tween term  and  term  and  then  they  perceive  not  how 
times  moves."2 

In  practice,  the  space  of  time  for  which  a  court  holds 
its  session,  is  called  a  "term"3  and  the  period  of  time 
between  the  end  of  one  term  of  court  and  the  beginning 
of  another  term,  is  called  the  "vacation."4  In  vacation, 
as  only  the  most  urgent  orders  and  rules  are  made  by 
the  Judge,  in  Chambers,  this  is  the  dull  season  for  lawyers, 
when  they  could  properly  "sleep"  so  that  they  would  "per- 
ceive not  how  time  moves." 


Sec.  113.    Jointure. — 

"Ros.  Nay,  an  you  be  so  tardy,  come  no  more  in  my 
sight;  I  had  as  lief  be  woo'd  of  a  snail? 

Orl.     Of  a  snail? 

Ros.  Ay,  of  a  snail ;  for  though  he  comes  slowly,  he  car- 
ries his  house  on  his  head;  a  better  jointure,  I  think, 
than  you  can  make  a  woman."5 

JFurness  shows  that  the  terms  are  not  properly  used  in  this 
connection,  as  the  writ  extendi  facias,  only  issued  after  judg- 
ment or  a  forfeiture,  but  as  the  declaration  of  the  Duke  is  tanta- 
mount to  a  forfeiture  of  the  goods,  lands  and  property  of  Orlando, 
and  a  declaration  of  an  intent  to  also  work  a  forfeiture  of  Oliver's 
lands,  the  use  of  the  terms  is  not  so  inappropriate,  after  all. 

aAs  You  Like  It,  Act  III,  Scene  II. 

"Bouvier's  Law  Dictionary. 

*  Ante  idem. 

•As  You  Like  It,  Act  IV,   Scene  I. 


156  THE  LAW  IN  SHAKESPEARE. 

A  "jointure,"  in  the  broader  sense,  is  a  joint  estate  lim- 
ited to  both  husband  and  wife.1  At  common  law,  a 
jointure  was  said  to  require  a  competent  livelihood  of  free- 
hold, for  the  wife,  in  lands  or  tenements,  to  take  effect, 
in  profits,  or  possession,  after  the  death  of  the  husband/ 
It  was  essential  that  the  estate  be  limited  to  the  wife  her- 
self; that  it  be  in  satisfaction  of  the  wife's  dower  and  that 
it  should  be  made  before  marriage.3  If  so  created,  the 
jointure  would  bar  a  claim  for  dower,  in  the  lands  of  the 
husband,  if  this  estate  was  claimed,  but  otherwise  not.4 

A  bridegroom,  presenting  a  house,  by  way  of  jointure, 
to  his  wife,  before  marriage,  would  create  such  an  estate 
in  her  by  way  of  "jointure,"  if  the  gift  was  so  conditioned, 
hence  the  application  of  the  term  is  proper,  in  the  way 
it  is  used. 

Sec.  114.    Acts  by  Attorneys.— 

"Orl.     Then,  in  mine  own  person,  I  die. 
Ros.     No  faith,  die  by  attorney.     The  poor  world  is  al- 
most  six  thousand  years  old  and  in  all  this  time 

*2  BL  Comm.  137;   Tiedeman,  R.  P.   (3d  Ed.)   117. 

2  Cruise  Dig.  tit.  7;   2  Bl.  Comm.  137. 

3  2  Bl.  Comm.  137. 

4  Tiedeman,  R.   P.    (3d  Ed.)    117. 

In  bidding  for  the  hand  of  Bianca,  in  Taming  of  the  Shrew, 
Tranio  is  made  to  say: 

"Tra.    I'll  leave  her  houses,  three  or  four  as  good, 
Within  rich  Pisa's  walls,  as  any  one, 
Old  signior  Gremio  has  in  Padua; 
Besides,  two  thousand  ducats  by  the  year, 
Of  fruitful  land,  all  which  shall  be  her  jointure." 

(Act  II,  Scene  I.) 

Lewis,  of  France,  thus  replies  to  Warwick,  in  3'  Henry  VI: 

"K.  Lew.    And  now,  forthwith,  shall  articles  be  drawn,  Touching 

the  jointure  that  your  king  must  make."     (Act  III,  Scene  III.) 

On  the  reconciliation,  in  Romeo  and  Juliet,  Capulet  is  made  to 

say,  to  Montague: 

"Cap.    O,  brother  Montague,  give  me  thy  hand: 
This  is  my  daughter's  jointure,  for  no  more 
Can  I  demand."  (Act  V,  Scene  III.) 


AS  YOU  LIKE  IT.  157 

there   was   not   one   man   died   in   his   own   person, 
videlicet,  in  a  love  cause."1 

The  use  of  the  term  "Attorney"  here  is  in  the  sense  of 
one  appointed  by  another  to  perform  some  act  for  him, 
as  distinguished  from  an  attorney  at  law,  who,  as  an  offi- 
cer of  a  court  of  justice,  is  retained  to  perform  some 
service  in  connection  with  a  pending  cause  before  the 
court. 

An  attorney  in  fact  is  one  who  acts  under  a  special 
appointment  for  the  commission  of  some  certain  act,  or 
the  performance  of  general  acts  in  some  particular  busi- 
ness.2 The  play  upon  the  word  is  in  the  legal  sense  only, 
for  instead  of  dying  in  his  "own  person,"  the  request  is 
that  he  die  by  "attorney."  Acts  by  attorney,  are  very 
properly  distinguishable  from  those  in  one's  own  person 
and  while  the  effect  in  law,  is  the  same  and  the  principal 
is  liable  for  the  acts  of  his  attorney,  duly  authorized,  the 
same  as  if  personally  performed,  this,  of  course,  could  not 
be  true  of  such  an  act  as  that  mentioned  for  to  die,  by  an 
attorney,  would  be  not  to  die  in  person. 

Sec.  115.    Examining  Justice. — 

"Ros.     Well,  time  is  the  old  justice  that  examines  all  such 
offenders  and  let  time  try."3 

The  comparison  of  an  examining  magistrate  to  Time, 
that  tries  all  offenders,  is,  in  accordance  with  the  uni- 

*As  You  Like  It,  Act  IV,  Scene  I. 

2  Bacon,  Abr.  Attorney;    Story,  Agency  Sec.  25. 

Speaking  of  his  offices  in  wooing  Margaret  for  his  sovereign, 
Suffolk  said,  in  V  Henry  VI:  "Suff.  .  .  And  yet,  methinks,  I 
could  be  well  content,  To  be  mine  own  attorney  in  this  case." 
(Act  V,  Scene  III.) 

Suffolk  urges  the  King,  in  favor  of  Margaret,  in  1'  Henry  VI: 
"Sufi.  Marriage  is  a  matter  of  more  worth,  Than  to  be  dealt 
in  by  attorneyship."  (Act  V,  Scene  V.) 

'As  You  Like  It,  Act  IV,  Scene  I. 


158  THE  LAW  IN  SHAKESPEARE. 

versa!  law  of  compensation,  which  rewards  or  punishes  all 
offenders  of  the  law,  an  apt  comparison.  Time,  in  the 
law,  often  furnishes  legal  presumptions,  for  or  against 
a  criminal,  according  to  the  facts  and  circumstances  sur- 
rounding the  crime,  which  makes  the  similitude  the  more 
complete.1 

1Bouvier's  Law   Dictionary,  Time. 


CHAPTER  XI. 

"ALL'S   WELL   THAT   ENDS   WELL." 

Sec.  116.  Wards — Heirs  of  fortune  under  King  as. 

117.  Giving  testimony  against  one — Impeachment. 

118.  Premises. 

119.  Theft. 

120.  Descent. 

121.  Lawful  Act. 

122.  Unlawful  Intents. 

123.  Entail — Remainders. 

124.  Evidence. 

125.  Divorce. 

Sec.  116.    Wards — Heirs  of  fortune  under  King  as. — 

"Bertram.  And  I  in  going,  madam,  weep  o'er  my  father's 
death  anew;  but  I  must  attend  his  majesty's  com- 
mand, to  whom  I  am  now  in  ward,  evermore  in  sub- 
jection."1 

A  ward,  in  law,  is  one  who  is  under  the  guardianship 
and  subject  to  the  care  and  control  of  his  guardian,  until 
he  is  emancipated  by  the  law,  or  becomes  of  age.2  In 
England,  the  heirs  of  large  fortunes  were  held  to  be  the 
King's  wards.  This  was  an  incident  of  the  old  feudal 
system,  by  virtue  of  which  the  lord  of  the  manor  had 
the  care  of  his  tenants'  person  during  his  minority,  for, 
in  legal  contemplation,  all  citizens  owning  real  estate  are 
but  tenants  of  the  crown.3 


1  All's  Well  That  Ends  Well,  Act  I,  Scene  I. 
2Bouvier's  Law  Dictionary. 
3Tiedeman,  R.  P.  Chap.  1    (3d  ed.). 

This  custom  of  wardship  did  not  obtain  in  France,  but  Shake- 
speare gives  the  manners  and  customs  and  laws  of  England  to  all 
other  countries,  then  he  follows  the  original  story,  in  holding  that 
the  King  had  the  right  to  select  a  wife  for  Bertram.  Rolfe's 
"All's  Well  That  Ends  Well,"  p.  151,  notes. 

(159) 


160  THE  LAW  IN  SHAKESPEARE. 

Sec.  117.    Giving  testimony  against  one — Impeachment. — 

"Countess.    Go  not  about;  my  love  hath  in't  a  bond 

Whereof  the  world  takes  note.     Come,  come,  disclose 
The  state  of  your  affection,  for  your  passions 
Have  to  the  full  appeach'd."1 

One  is  said  to  be  impeached,  or  "appeached,"  when 
one's  guilt  is  disclosed  by  facts  or  testimony,  at  variance 
with  the  evidence  of  the  party  testifying  in  a  court  of 
justice.2  One  who  "turns  state's  evidence"  against  his 
co-criminal,  is  hence  said  to  "  'peach"  upon  his  confed- 
erate in  crime,  and  when  evidence  is  introduced  to  break 
down  the  character  or  testimony  of  a  witness,  he  is  said 
to  be  impeached  or  his  evidence  broken  down.3 

The  Countess  compares  the  passions  or  love  of  Helena 
to  a  witness  who  has  impeached  the  affection  of  her 
heart,  hence  urges  that  no  further  dissembling  will  avail 
her. 

Sec.  118.    Premises. — 

"King.     Here  is  my  hand ;  the  premises  observ'd, 

Thy  will,  by  my  performance  shall  be  serv'd."4 

"Premises"  is  here  used  in  the  sense  of  that  which  has 
already  been  put,  or  according  to  statements  previously 
made,5  rather  than  with  the  meaning  given  to  such  term, 
in  conveyances. 

In  other  words,  the  King,  proposes,  on  the  compliance 
with  the  conditions  prescribed,  that  he  will  perform  such 
acts  as  the  one  addressed  shall  will. 


1  All's  Well  That  Ends  Well,  Act  I,  Scene  III. 

2Greenleaf,  Evid,   (14  ed.). 

3 Halliwell-Phillips  quotes  Palsgrave:  "I  apeche,  I  accuse, 
f accuse;  kursed  be  the  preest  of  God,  that  dyd  apeche  me  wrong- 
fully and  without  deservyng."  Rolfe's  All's  Well  That  Ends 
Well,  169,  notes. 

4  All's  Well   That  Ends  Well,   Act   II,   Scene   I. 

"This  term  is  no  doubt  taken  from  the  Latin  prae,  before  and 
mittere,  to  put.     Bouvier's  Law  Dictionary. 


all's  well  that  ends  well.  161 

Sec.  119.    Theft.— 

"Hel     I  am  not  worthy  of  the  wealth  I  owe; 
Nor  dare  I  say,  'tis  mine ;  and  yet  it  is ; 
But,  like  a  timorous  thief,  most  fain  would  steal, 
What  law  does  vouch  mine  own."1 

As  theft  is  the  secret  and  wrongful  abstraction  of  the 
property  of  another,  without  his  consent,2  it  is  of  course 
of  the  first  essence  of  the  crime  that  the  property  taken 
was  that  of  another  than  the  rightful  owner,  since  no  man 
can  steal  his  own  property.  A  thief  too  timorous  to  steal 
from  another,  would  of  course  not  be  a  thief  in  taking  his 
own,  but  the  expression  illustrates  the  timidity  of  Helena, 
in  claiming  her  lawful  rights,  as  she  dare  not  say  "  'tis 
mine ;  and  yet  it  is." 

1  All's  Well  That  Ends  Well,  Act  II,  Scene  V. 

2  Allison,  Cr.  Law,   250. 

In  Macbeth,  Malcolm  said  to  Donalbain:  "There's  warrant  in 
that  theft  which  steals  itself,  when  there's  no  mercy  left." 
(Macbeth,  Act  II,  Scene  III.) 

King  Richard  II,  said  of  Bolingbroke: 
"JT.  Rich.    For  well  we  know,  no  hand  of  blood  and  bone 
Can  gripe  the  sacred  handle  of  our  sceptre, 
Unless  he  do  profane,  steal,  or  usurp."     (Act  III,  Scene  III.) 
In  V  Henry  IV  (Act  I,  Scene  II)  Falstaff  said  to  Prince  Henry: 
"Fal.     Marry,  then  sweet  wag,  when  thou  aft  king,  let  not  us, 
that  are  squires  of  the  night's  body,  be  called  thieves  of  the  day's 
beauty." 

King  Henry  tells  Prince  of  Wales,  in  2'  Henry  IV:  "K.  Hen. 
.  .  .  Thou  hast  stol'n  that,  which,  after  some  few  hours,  were 
thine  without  offense."     (Act  IV,  Scene  IV.) 

The  duke  of  Exeter,  in  Henry  V,  answering  the  argument  of 
Westmoreland  as  to  danger  from  invasions  by  the  Scots,  said: 
"We  have  locks  to  safeguard  necessaries,  and  pretty  traps  to 
catch  the  petty  thieves."     (Act  I,  Scene  II.) 

Troilus  thus  argues  for  the  retention  of  Helen,  in  Troilus  and  Cressida; 
"Trot.     .     .    O  theft  most  base; 

That    we  have  stolen  what  we  do  fear  to  keep? 

But,  thieves,  unworthy  of  a  thing  so  stolen, 

That  in  their  country  did  them  that  disgrace, 

We  fear  to  warrant  in  our  native  place."      (Act  II,  Scene  II.) 


162  THE  LAW  IN  SHAKESPEARE. 

Sec.  120.    Descent.— 

"Hel  ...  A  ring  the  county  wears,  that  downward 
hath  succeeded  in  his  house,  from  son  to  son,  some 
four  or  five  descents,  since  the  first  father  wore  it."1 

"Descents"  is  here  used  in  the  sense  of  generations,  not 
as  a  word  showing  title  to  the  ring  referred  to.  A  title 
by  descent  is  the  title  by  which  one  person,  on  the  death 
of  another,  acquired  the  real  estate  of  the  latter,  as  his 
heir  at  law.2  The  ruies  of  descent  are  applicable  only 
to  real  estate  of  inheritance  and  not  to  personalty. 

That  the  ring  has  passed  from  son  to  son,  successively, 
is  in  keeping  with  the  English  law  of  primogeniture,  which 
gave  the  heirlooms,  such  as  that  referred  to,  to  the  first 
born,  rather  than  to  the  younger  children. 

In  justifying  thievery,  Timon  of  Athens,  is  made  to  say,  to 

the  two  Thieves  who  come  upon  him: 

"Tim.     I'll  example  you  with  thievery: 

The  sun's  a  thief,  and  with  his  great  attraction, 
Robs  the  vast  sea;   the  moon's  an  arrant  thief, 
And  her  pale  fire  she  snatches  from  the  sun; 
The  sea's  a  thief,  whose  liquid  surge  resolves 
The  moon  into  salt  tears:   the  earth's  a  thief, 
That  feeds  and  breeds  by  a  composture  stolen 
From  general  excrement:   each  things  a  thief." 

(Act  IV,  Scene  III.) 

*  All's  Well  That  Ends  Well,  Act  III,  Scene  VII. 
2  2  Bl.  Comm.  201. 

In  his  charges  against  Mowbray,  in  King  Richard  II,  Boling- 
broke  said: 

"Boling.    ...    By  the  glorious  worth  of  my  descent, 
This  arm  shall  do  it,  or  this  life  be  spent." 

(Act  I,  Scene  I.) 
In    re-investing    Richard    Plantagenet    with    his    inheritance, 
1'  Henry  VI,  is  made  to  say: 

"K.  Hen.     .    .    If  Richard  will  be  true,  not  that  alone, 
But  all  the  whole  inheritance  I  give, 
That  doth  belong  unto  the  house  of  York, 
From  whence  you  spring,  by  lineal  descent." 

(Act  III,  Scene  I.) 


all's  well  that  ENDS  WELL.  163 

Sec.  121.    Lawful  act.— 

"Hel.     .     .     Let  us  assay  our  plot ;  which,  if  it  speed. 
Is  wicked  meaning  in  a  lawful  deed, 
And  lawful  meaning  in  a  lawful  act; 
Where  both  not  sin  and  yet  a  sinful  fact."1 

This  verse  recognizes  the  essential  of  every  crime,  the 
wrongful  intent,  coupled  with  the  wrongful  act,  in  the 
commission  of  the  crime.2  A  deed  not  otherwise  forbid- 
den by  law,  may  be  prompted  by  a  bad  intent  or  wicked 
object,  but  yet,  as  the  act  itself  is  lawful  no  crime  is  com- 
mitted, but  where  both  the  act  and  the  intent  are  lawful 
it  never  is  held  to  constitute  a  crime.  The  sinful  intent  on 
the  part  of  Bertram,  not  being  participated  in  by  Helena 
and  she  being  really  his  wife,  with  whom  cohabitation  was 
not  sinful,  there  was  thus  the  "wicked  meaning  in  a  law- 
ful deed,  and  lawful  meaning  in  a  lawful  act,"  within  the 
contemplation  of  Helena. 

Sec.  122.    Unlawful  intents.— 

"1  Lord.     Is  it  not  meant  damnable  in  us,  to  be  trumpeters 
of  our  unlawful  intents?"3 
To  render  an  act,  forbidden  by  law,  criminal,  there  must 
always  be  a  criminal  or  "unlawful  intent"  in  the  commis- 
sion of  the  act4  and  this  is  one  of  the  essential  elements  of 


Margaret  of  Anjou  said  to  the  weak  king,  Henry  VI,  in  2  Henry  VI.: 
"Q.  Mar.     And  Humphrey  is  no  little  man  in  England. 

First  note,  that  he  is  near  you  in  descent."      (Act  III.  Scene  I.) 

The  Messenger  advises  King  Henry,  in  2'  Henry  VI:  "Mess. 
Jack  Cade  proclaims  himself  lord  Mortimer,  descended  from  the 
duke  of  Clarence's  house:  And  calls  your  grace 'usurper,  openly." 

(Act  IV,  Scene  IV.) 

Lord  Hastings,  in  Richard  III,  replies  to  the  suggestion  of 
Catesby,  that  he  join  the  forces  of  Richard  III:  "Hast.  But, 
that  I'll  give  my  voice  to  Richard's  side,  To  bar  my  master's 
heirs,  in  true  descent,  God  knows,  I  will  not  do  it,  to  the  death." 

(Act  III,  Scene  II.) 

1  All's  Well  That  Ends  Well,  Act  III,  Scene  VII. 

21  Russell,  Crimes,  (Greaves  Ed.)  48. 

3  All's  Well  That  Ends  Well,  Act  IV,  Scene  III. 

41  Bishop,  Criminal  Law,  Sec.  221. 


164  THE  LAW  IN  SHAKESPEARE. 

the  crime,  which  the  prosecution  must  always  establish. 
Sometimes  it  is  difficult  to  prove  that  the  commission  of 
an  act  was  prompted  by  a  criminal  or  "unlawful"  intent, 
hence  the  conclusion  that  it  would  be  unpardonable  in  the 
speaker  to  himself  act  as  the  trumpeter  of  his  "unlawful 
intents." 

Sec.  123.    Entail — Remainders. 

"Par.  Sir,  for  a  quart  d'ecu  he  will  sell  the  fee-simple  of 
his  salvation,  the  inheritance  of  it;  and  cut  the  entail 
from  all  remainders,  and  a  perpetual  succession  for  it 
perpetually."1 

A  fee-simple  is  a  freehold  estate  of  inheritance,  free 
from  conditions.  It  is  the  highest  estate  known  to  the 
law  and  is  absolute,  so  far  as  it  is  possible  to  possess  an 
absolute  right  of  property  in  land.2  Freehold  estates  are 
either  of  inheritance  or  those  not  of  inheritance,3  hence 
the  "inheritance"  of  his  salvation,  is  used  as  a  synonym 
for  the  fee-simple  absolute  estate  therein. 

An  estate  tail  or  an  "entail"  was  an  estate  of  inheritance, 
that  was  conditioned  to  descend  to  the  heirs  of  the  donee's 
body,  instead  of  to  his  heirs  generally,  in  a  direct  line,  so 
long  as  his  direct  posterity  continued  and  the  estate  deter- 
mined upon  the  death  of  the  owner  without  issue.4  A 
remainder  is  the  future  estate  in  lands  which  is  supported 
and  preceded  by  a  particular  estate  in  possession,  which 
must  determine  before  the  remainder  takes  effect.5 

As  a  fee-simple  estate  is  one  free  from  all  "entails"  and 
"remainders,"  and  "perpetual  succession"  is  likewise  an 
incident  of  such  an  absolute  estate  in  lands,  as  distin- 
guished from  the  more  limited  estates,  with  which  it  is 
contrasted,  in  this  verse,  it  is  apparent  that  the  terms  used 
are  employed  in  their  proper  legal  sense. 

1  All's  Well  That  Ends  Well,  Act  IV,  Scene  III. 
2Teideman,  R.  P.  Sec.  29   (3d  ed.). 
3Tiedeman,  R.  P.  Sec.  26    (3d  ed.). 
♦Tiedeman,  R.  P.  Sec.  38   (3d  ed.). 
•Tiedeman,  R.  P.  Sec.  296   (3d  ed.). 


ALL'S  WELL  THAT  ENDS  WELL.  165 

Sec.  124.    Evidence. 

"King.     .     .     .     But  thou  art  too  fine  in  thy  evidence; 
therefore  stand  aside."1 

Evidence,  in  law,  includes  all  the  means  by  which  any 
alleged  fact  is  established  or  disproved.2  In  the  connec- 
tion in  which  the  word  is  used  in  this  verse,  it  means  oral 
evidence,  or  the  testimony  of  a  witness,  given  viva  voce, 
as  distinguished  from  written  evidence.3  As  the  object  of 
all  evidence  is  to  ascertain  the  truth  regarding  the  fact 
alleged  or  disaffirmed,  testimony  of  witnesses  is  therefore 
confined  to  the  point  in  issue  and  where  the  witness  draws 
unnecessary  distinction,  or  vacillates  from  the  truth,  the 
witness  is  sometimes  said  to  be  drawing  too  fine  distinc- 
tions. The  meaning  of  this  is,  that  instead  of  meeting 
the  issue,  the  witness  dodges  the  issue  by  distinctions  and 
points  too  fine  to  be  appreciated  by  those  seeking  the  truth. 
After  a  witness  has  testified  it  is  a  common  thing  for  the 
Counsel  or  Court  to  ask  the  witness  to  "stand  aside,"  hence 
the  King,  on  rejecting  the  testimony  offered  because  the 
evidence  was ' '  too  fine, "  asked  the  witness  to  "stand  aside." 

In  Titus  Andronicus,  Marcus  speaks  of  "the  poor  remainder  of 
Andronici."     (Act  V,  Scene  III.) 

Posthumus  bids  Cymbeline  adieu,  in  the  following  words: 
"Post.  The  gods  protect  you:  and  bless  the  good  remainders  of 
the  court."     (Act  I,  Scene  II.) 

Polonius  tells  the  Queen,  in  Hamlet:  "Pol.  For  this  effect,  de- 
fective, comes  by  cause;  Thus  it  remains  and  the  remainder, 
thus."     (Act  II,  Scene  II.) 

1  All's  Well  That  Ends  Well,  Act  V,  Scene  III. 

21  Greenl.  Evid.  Sec.  1,  Chap.  1. 

8 1  Phillipps  Evid.  166. 

Clarence  asks  of  the  murderers,  before  his  murder,  in  King 
Richard  III,  Act  I,  Scene  IV:  "Clar.  .  .  .  Where  is  the  evi- 
dence that  doth  accuse  me?  What  lawful  quest  have  given  their 
verdict  up  unto  the  frowning  judge?" 

Clarence  tells  Brakenbury,  in  King  Richard  III:  "Mar.  O. 
Brakenbury,  I  have  done  these  things,  That  now  give  evidence 
against  my  soul."     (Act  I,  Scene  IV.) 


166  THE   LAW  IN  SHAKESPEARE. 

Sec.  125.    Divorce. 

"Hel.     If  it  appear  not  plain,  and  prove  untrue, 
Deadly  divorce  step  between  me  and  you."1 

Marriage  being  a  legal  relation  and  not  a  mere  contract, 
between  husband  and  wife,  it  takes  some  legal  authority 
to  dissolve  the  relation  and  the  dissolution  or  suspension, 
by  law,  of  such  relation,  is  called  divorce.2  Formerly,  in 
England,  ecclesiastic  courts  alone  had  jurisdiction  over 
divorce  suits  and  the  temporal  courts  had  no  authority  to 
dissolve  the  relation  of  husband  and  wife.  The  divorce 
absolute  was  called  a  divorce  from  the  bonds  of  matrimony, 
or  a  vinculo  matrimonii,  while  a  mere  suspension  of  the 
relation  was  called  a  mensa  et  thoro,  or  a  denial  of  the  bed 
and  board  of  the  husband  or  wife.3 


1  All's  Well  That  Ends  Well,  Act  V,  Scene  III. 

2  Bishop,  Marriage  and  Divorce,  Sec.  292. 

3  Bishop,  Marriage  and  Divorce,  Sec.  3. 

Polixenes,  in  Winter's  Tale,  is  made  to  say,  to  his  son:  "Pol. 
Mark  your  divorce,  young  sir,  whom  son  I  dare  not  call."  (Act 
IV,  Scene  III.) 

In  King  Richard  II,  Bolingbroke  thus  addressed  Bushy  and 
Green: 

"Boling.     .     .     .     You  have,  in  manner,  with  your  sinful  hours, 
Made  a  divorce  betwixt  his  queen  and  him; 
Broke  the  possession  of  a  royal  bed, 
And  stained  the  beauty  of  a  fair  queen's  cheeks, 
With  tears  drawn  from  her  eyes,  by  your  foul  wrongs." 

(Act  III,  Scene  I.) 
King  Richard  II  is  made  to  say,  to  Northumberland: 
"K.  Rich.     Doubly  divorc'd?     Bad  men,  ye  violate 
A  twofold  marriage;  'twixt  my  crown  and  me; 
And  then  'twixt  me  and  my  married  wife."     (Act  IV,  Scene  I.) 
Gloster  thus  divorces  his  wife,  on  her  arrest  for  treason,  in  2' 
Henry  VI: 

"Glo.     ...     I  banish  her,  my  bed  and  company; 
And  give  her,  as  a  prey  to  law  and  shame, 
That  hath  dishonor'd  Gloster's  honest  name." 

(Act  II,  Scene  I.) 


all's  well  that  ends  well.  167 

In  speaking  of  the  dissolution  of  the  relation  of  hus- 
band and  wife  as  "deadly,"  the  Poet  clearly  entertained 
the  present  view  of  the  evil  effects  of  divorces,  as  a  blight 
upon  the  home  life  and  a  remedy  to  be  avoided. 

Queen  Margaret  tells  the  king,  in  3'  Henry  VI:  "Q.  Mar.  .  . 
thou  prefer'st  thy  life,  before  thine  honour;  And  seeing  thou 
dost,  I  here  divorce  myself,  Both  from  thy  table,  Henry  and  thy 
bed,  Until  that  act  of  Parliament  be  repealed,  Whereby  my  son 
is  disinherited."     (Act   I,   Scene   I.) 

Replying  to  Cardinal  Wolsey's  advice  to  trust  her  cause  to  the 
King,  permitting  him  a  divorce  from  her,  Queen  Katherine  said: 
"Q.  Kath.    Nothing  but  death  shall  e'er  divorce  my  dignities." 

(Act  III,  Scene  I.) 

On  finding  gold  in  the  forest,  Timon  of  Athens,  said:     "Tim. 
O  thou  sweet  king-killer,  and  dear  divorce,  'twixt  natural  son  and 
sire:    thou  bright    defiler    of    Hymen's    purest  bed."     (Act  IV, 
Scene  III.) 
Desdemona  thus  pleads  with  the  beast  Iago,  in  Othello: 
"That  I  do  not  yet,  and  ever  did, 
And  ever  will, — though  he  do  shake  me  off 
To  beggarly  divorcement, — love  him  dearly, 
Comfort  forswear  me."  (Act  IV,  Scene  II.) 

Venus  thus  addresses  death,  in  Venus  and  Adonis: 
" 'Hard-favor'd  tyrant,  ugly,  meager,  lean, 
Hateful  divorce  of  love, — thus  chides  she  death."     (931,  932.) 


CHAPTER  XII. 

"THE  TAMING  OF  THE  SHREW." 

Sec.  126.  Third-borow. 

127.  Court-leet,  or  Manor  Court. 

128.  Adversaries  at  Law. 

129.  Compounding  crime. 

130.  Servant  assaulting  master. 

131.  Punishment  by  the  Pillory. 

132.  Settlement  by  way  of  Assurance. 

133.  Chattels. 

134.  "Packing"  a  witness. 

Sec.  126.    Third-borow.— 

"Host.    I  know  my  remedy,  I  must  go  fetch  the  third 

borough. 
Sly.     Third,  or  fourth,  or  fifth  borough,  I'll  answer  him 

by  law ; 
I'll   not  budge  an  inch,  boy;   let  him  come,   and 

kindly."1 

A  thirdborough,  or  third-borow,2  as  sometimes  called, 
was  an  under  constable  and  in  old  English  law  was  spoken 
of  as  an  officer  holding  about  the  same  power  and  sub- 
ject to  the  same  limitations  as  a  constable.3  As  a  peace 
officer  and  one  invested  with  the  authority  to  preserve  the 
peace,  he  would  have  had  jurisdiction  over  the  person 
of  the  offender,  in  this  instance,  for  disturbance  of  the 
peace  and  destroying  the  property  of  the  Hostess. 

Sec.  127.    Court-leet,  or  manor  court. — 

"1  Serv.     0,  yes,  my  lord,  but  very  idle  words; 

For  though  you  lay  here  in  this  goodly  chamber, 
Yet  would  you  say  ye  were  beaten  out  of  door, 

1  Taming  of  the  Shrew,  Induction,  Scene  I. 
2Bouvier's  Law  Dictionary. 
'Lambard,  Duty  of  Const.,  6. 

In  Love's  Labour's  Lost,  the  Constable,  Dull,  is  made  to  say: 
"Dull.  I  myself  reprehend  his  own  person,  for  I  am  his  grace's 
tharborough,"  meaning  that  he  is  a  peace  officer.    (Act  I,  Scene  I.) 

(168) 


TAMING  OF  THE  SHREW.  169 

And  rail  upon  the  hostess  of  the  house, 
And  say  you  would  present  her  at  the  leet, 
Because  she  brought  stone  jugs  and  no  seal'd  quarts."1 

A  court-leet  was  the  most  ancient  court  for  the  trial 
of  criminal  cases  known  to  the  common  law.  It  was  a 
court  of  record,  with  the  same  jurisdiction  in  some  par- 
ticular precinct  as  the  sheriff's  tourn  in  the  county.2  This 
court  assumed  jurisdiction  of  those  petty  offenders,  ac- 
cused of  using  false  weights  and  measures,  hence  the 
conclusion  by  the  servant  that  the  hostess  would  be  pre- 
sented and  charged,  at  the  court-leet,  because  she  used 
stone-jars,  instead  of  the  legal  sized,  quart-pots,  duly  sealed 
and  approved.3 

Sec.  128.    Adversaries  at  law. — 

"Tra.     Please  ye  we  may  contrive  this  afternoon, 
And  quaff  carouses  to  our  mistress'  health ; 
And  do  as  adversaries  do  in  law, — 
Strive  mightily,  but  eat  and  drink  as  friends."4 

Manifestly,  in  Shakespeare's  time,  as  at  the  present  day, 
the  legal  profession  was  noticeable  for  the  absence  of  pro- 
fessional jealousies,  such  as  characterize  the  other  learned 
professions  in  a  more  marked  degree.  In  the  medical  pro- 
fession and  in  the  ministry — where  humility  and  toler- 
ance, it  would  seem,  would  prompt  the  members  of  such 
profession  to  be  charitable  to  their  rivals — this  jealousy 
is  particularly  marked,  while  in  the  law,  more  than  in  any 
other  of  the  learned  callings,  opponents  to-day,  as  in  the 
time  of  Shakespeare,  "Strive  mightily,  but  eat  and  drink 
as  friends." 


1  Taming  of  the  Shrew,  Induction,  Scene  II. 

2  4  Bl.  Comm.  273. 

3  Rolfe's  Taming  of  the  Shrew,  p.  158,  notes. 
*  Taming  of  the   Shrew,  Act  I,   Scene   II. 

This  verse  is  evidence  of  the  fact  that  the  Poet  not  only  knew 
the  law  but  lawyers,  as  well.  Perhaps  this  is  why  he  knew  the 
law,  because  of  his  association  with  lawyers.    This  verse  is  not 


170  THE  LAW  IN  SHAKESPEARE. 

Sec.  129.     Compounding  crime. — 

"Hor.  .  .  .  Rise,  Grumio,  rise;  we  will  compound 
this  quarrel."1 

Compounding  a  felony  or  misdemeanor  rendered  the 
party  so  compounding  such  an  offense,  an  accessory,  at 
common  law.2  Any  act  whereby  the  prosecutor  or  ag- 
grieved person,  for  a  reward,  agreed  not  to  prosecute  the 
offense  was  a  compounding  of  the  crime.3  But  the  term 
is  used  here  as  a  synonym  for  compromise,  rather  than 
in  the  technical  sense. 

Sec.  130.    Servant  assaulting  master. — 

"Gru.  Nay,  'tis  no  matter  what  he  'leges  in  Latin — if 
this  be  not  a  lawful  cause  for  me  to  leave  his  service — 
Look  you,  sir, — he  bid  me  knock  him,  and  rap  him 
soundly,  sir;  Well,  was  it  fit  for  a  servant  to  use  his 
master  so?"4 

The  rights  and  duties  of  domestics,  or  those  menial  em- 
ployees who  were  lodged  and  fed  in  the  house  of  the"  mas- 
ter, were  well  established  by  the  common  law  of  England.5 
The  legal  duty  was  imposed  on  the  servant  to  defend 
the  person  of  his  master  and  an  assault  in  the  defense  of 
the  person  of  the  master,  wTas  held  justifiable,  at  common 
law,  as  this  was  deemed  a  part  of  his  duty,  for  which  he 
received  his  wages.6  Instead  of  defending  his  master  from 
an  assault,  as  Grumio  construed  his  directions  in  this  in- 
stance, he  was  asked  to  himself  assault  his  master,  an  act 


like  a  lawyer  would  write,  for  the  common  courtesy  of  the  pro- 
fession is  so  much  a  part  of  the  make-up  of  a  lawyer  and  seems 
such  a  matter  of  fact  that  a  lawyer  would  not  be  apt  to  remark 
it,  or  give  such  emphasis  to  the  fact,  as  Shakespeare  has. 

1  Taming  of  the  Shrew,  Act  I,  Scene  II. 

2  Hawkins,  PI.  Cr.  125. 
31  Chitty,  Crim.  Law,  4. 

4  Taming  of  the  Shrew,  Act  I,  Scene  II. 
Bl  Bl.  Comm.  324. 
61  Bl.  Comm.  429. 


TAMING  OF  THE  SHREW.  171 

directly  at  variance  with  his  legal  duty,  as  a  competent 
servant,  This  would  have  been  inconsistent  with  the 
legal  duty  owing  by  him,  under  the  English  law,  toward 
his  master,  hence,  whatever  the  rule  quoted  in  Latin,  it  was 
Grumio's  contention  that  a  direction  to  assault  his  master 
was  a  sufficient  ground  to  leave  his  service,  since  such  an 
assault  would  have  caused  him  to  violate  the  law. 

Sec.  131.    Punishment  by  pillory. — 

"Her.     .     .    And,  with  that  word,  she  struck  me  on  the 
head, 
And  through  the  instrument  my  pate  made  way; 
And  there  I  stood  amazed  for  a  while, 
As  on  a  pillory,  looking  through  the  lute."1 

Katherine  had  so  thrown  the  instrument  over  his  head 
as  to  leave  his  head  protruding  through  it,  as  one  im- 
paled in  the  pillory. 

The  pillory  was  an  ancient  instrument  of  torture  and 
for  the  punishment  of  criminals,  much  used  in  England 
prior  to  1837,  when  its  use  was  discontinued.  It  consisted 
of  a  stout  plank,  fixed,  like  a  sign  board,  on  a  pole,  which 
was,  in  turn,  supported  by  a  wooden  platform,  from  the 
ground.  Another  plank,  parallel  with  the  first  was  sim- 
ilarly arranged,  on  a  hinge,  with  a  large  hole,  for  the 
neck  of  the  culprit  and  two  smaller  holes  for  the  hands, 
and  the  boards  were  so  arranged  that  when  the  neck  and 
hands  of  the  criminal  were  inserted  against  the  first  board, 
the  other  was  fastened  against  it,  thus  leaving  the  culprit 
imprisoned  by  his  neck  and  wrists,  where  he  was  kept 
and  subjected  to  various  indignities,  according  to  the 
gravity  of  his  offense.  By  the  statute  of  the  pillory2  (51 
Hen.  Ill,  c.  6)  the  offenders  liable  to  be  subjected  to  such 
punishments  were  "forestalled,  users  of  deceitful  weights, 
perjurers,  forgers,"  etc.,  and  later  libelers  and  publishers 
of  books  not  submitted  to  the  censorship  of  the  king  were 


1  Taming  of  the  Shrew,  Act  II,  Scene  I. 

3 II  Reeve's  History  Eng.  Law,  p.  302,  et  seq. 


172  THE  LAW  IN  SHAKESPEARE. 

subjected  to  this  punishment,  among  whom  was  a  list  of 
distinguished  men,  in  England. 

Sec.  132.    Settlement  by  way  of  assurance. — 
"Bapt.     I  must  confess  your  offer  is  the  best, 

And,  let  your  father  make  her  the  assurance. 

She  is  your  own."1 

An  assurance  is  a  settlement,  by  written  contract,  in 
legal  form,  of  property  or  business  differences  between  the 
parties  to  the  agreement,  by  the  terms  of  which  the  one 
is  assured  of  a  complete  right  or  title,  as  against  the  other.2 
Deeds  of  assurance  were  used  to  grant  marriage  portions 
and  this  is  the  way  the  term  is  applied  in  this  connection. 

Sec.  133.    Chattels.— 

"Pet.     ...     I  will  be  master  of  what  is  mine  own: 
She  is  my  goods,  my  chattels;  she  is  my  house, 
My  household  stuff,  my  field,  my  barn, 
My  horse,  my  ox,  my  ass,  my  any-thing."3 

A  chattel,  according  to  the  English  law,  is  any  kind  of 
property  which,  with  reference  either  to  the  nature  of  the 
subject  or  the  character  of  the  interest  possessed  in  it,  was 
not  a  freehold.  That  class  of  property  known  as  chattels, 
included  not  only  movable  property,  but  also  all  classes  of 
property,  which,  though  immovable,  was  not  held  under 
the  feudal  tenure.4 

Any  interest  in  land  not  amounting  to  a  freehold,  was 
held  to  be  a  chattel  interest  therein.  But  as  between  prop- 
erty thus  savoring  of  the  realty  and  mere  personal  mov- 
ables, such  as  money,  plate,  cattle,  or  such  like  property, 
there  was  a  natural  distinction,  so  chattels  were  divided 
into  chattels  real  and  chattels  personal.  All  character  of 
chattels,  at  the  old  common  law,  were  regarded  as  inferior 


1  Taming  of  the  Shrew,  Act  II,  Scene  I. 
'Bouvier's  Law  Dictionary. 
'Taming  of  the  Shrew,  Act  III,  Scene  II. 
♦Tiedeman,  R.  P.  (3d  ed.)  Ch.  1. 


TAMING  OF  THE  SHREW.  173 

to  the  kind  of  property  known  as  real  estate/  hence 
Petruchio  calls  Katharina  his  "chattel/'  to  show  his 
prowess,  with  reference  to  his  ability  to  move  her  at  his 
will,  since  by  the  law,  the  situs  of  personal  property  was 
held  to  accompany  the  person  of  the  owner. 

Sec.  134.    Packing  a  witness. — 

"Gre.     Here's  packing,  with  a  witness  to  deceive  us  all."2 

Packing  is  here  used  in  the  sense  of  a  deception  by  false 
appearances;  a  counterfeit,  or  a  delusion  and  the  term  is 
applied  in  law  to  the  act  of  falsely  organizing  a  jury  to 
render  a  certain  verdict.3  In  other  words,  a  jury  is  said 
to  be  "packed"  when  men  are  qualified  who  falsely  swear 
that  they  have  no  interest  in  the  controversy  or  issue  to 
be  tried,  after  pledging  themselves  to  return  a  verdict  for 
one  side  or  the  other.  The  witness  was  falsely  personating 
another,  in  the  sense  the  term  is  used  here  and  had  agreed 
to  give  false  testimony,  or  perjury,  as  the  speaker  intended. 

»2   Bl.  Comm.  384. 

In  Henry  V  (Act  II,  Scene  III)  Pistol  said  to  Hostess  Quickly: 
"Pist.  Come,  lets  away. — My  love,  give  me  thy  lips;  Look  to  my 
chattels  and  my  movables."  This  shows  the  Poet's  familiarity 
with  the  proper  use  of  the  term,  for  by  the  second  noun,  he  not 
only  used  a  synonym,  but  apparently  did  it  to  define  the  first  one 
used. 

On  discovery  of  the  duplicity  of  Cardinal  Wolsey,  King  Henry 
issued  a  writ  against  him  to  forfeit  all  his  "goods,  lands,  tene- 
ments, chattels  and  whatsoever,"  etc.  (King  Henry  VIII,  Act 
III,   Scene   II.) 

2  Taming  of  the  Shrew,  Act  V,  Scene  I. 

3  Bacon,  Abr.,  Juries   (M.). 

The  Moor,  Aaron,  in  Titus  Andronicus,  speaks  of  packing  with 
Muliteus,  for  the  exchange  of  children,  as  follows: 
"Aar.     .     .     Go  pack  with  him,  and  give  the  mother  gold, 
And  tell  them  both  the  circumstance  of  all." 

(Act    IV,    Scene    II.) 
In   Cymbeline,   Cloten   asks:       "Who   is   here?  What,   are   you 
packing,  sirrah?"     (Act  III,  Scene  V.) 


CHAPTER  XIII. 

"THE  WINTER'S  TALE." 

Sec.  135.  Time  overthrows  Law  and  Custom. 

136.  Trespass. 

137.  Negligence  distinguished  from  wilfulness. 

138.  Prisoner's   fees. 

139.  Not   guilty. 

140.  King's  prerogative. 

141.  Child  born  in  prison. 

142.  Commitment  to  jail. 

143.  Arraignment  of  Hermione. 

144.  Surmises,  not  proof  of  guilt. 

145.  Indictment. 

146.  Torture  by  "boiling  in  oil". 

147.  Lawyer's  points. 

148.  Arrested  in  the  act,  or,  "Taken  with  the  Manner." 

149.  Witchcraft  and  practice  of  magical  arts. 

Sec.  135.     Time  overthrows  law  and  customs. — 

"Time,  as  Chorus.     Since  it  is  in  my  power, 

To  o'erthrow  law,  and  in  one  self-born  hour 
To  plant  and  o'erwhelm  custom."1 

The  coupling  of  law  and  custom,  in  this  verse,  shows 
the  knowledge  of  the  Poet  of  the  origin  of  law,  for  the 
English  common  law  was  but  the  crystallization  of  those 
customs  which  had  continued  until  they  came  to  be  recog- 
nized as  law,  by  the  courts.2  Custom  differs  from  pre- 
scription, in  that  the  latter  is  personal  and  annexed  to 
the  owner  of  a  particular  estate,  while  a  custom  extends 
to  all  within  the  district  where  it  obtains.3  In  order  to 
establish  a  custom,  such  as  would  confer  a  right  at  law, 


1  Winter's  Tale,  Act  IV,  Scene  I. 

2  Bacon,  Abr.,  1;  1  Bl.  Comm.  76;   2  idem.  31. 
8  2  Bl.  Comm.  263. 

Queen  Margaret  observes,  in  3'  Henry  VI:  "Q.  Mar.  Yet 
heavens  are  just  and  time  suppresseth  wrongs."  (Act  III,  Scene 
ill.) 

(174) 


winter's  tale.  175 

it  is  necessary  to  show  that  it  had  existed  for  a  time  such 
that  the  "memory  of  man  runneth  not  to  the  contrary 
thereof,"  and  if  the  usage,  in  connection  with  the  right 
claimed,  had  ceased  for  any  length  of  time,  the  interrup- 
tion of  the  custom  would  necessitate  a  new  beginning,  be- 
cause it  occurred  within  the  "memory  of  man."  Hence, 
it  is  that  Time  plays  a  very  important  part  in  the  estab- 
lishment of  customs  and  laws,  and  it  is  consequently  in 
the  power  of  Time  "To  o'erthrow  law  and  in  one  self-born 
hour,  to  plant  and  o'erwhelm  custom." 

Sec.  136.    Trespass.— 

"Cam.     Be  plainer  with  me;  let  me  know  my  trespass 
By  its  own  visage:  if  I  then  deny  it,  'tis  none  of 
mine."1 

A  trespass  is  any  wrongful  act  or  omission  resulting  in 
injury  to  the  person  or  property  of  another.2  The  action 
of  trespass  lies  as  well  for  injuries  to  the  person,  as  by 
an  assault  and  battery,3  as  for  an  injury  to  the  real  estate 
of  the  injured  person.4  If  the  real  estate  was  entered  by 
force  and  arms,  it  was  called,  at  the  common  law,  trespass 
vi  et  armis,  while  a  mere  entry,  without  force,  was  called 
trespass  by  breaking  the  close.5  However,  the  distinctions 
between  the  different  kinds  of  trespass  are  not  important 
here. 

The  speaker  asks  for  the  facts  in  connection  with  the 
charge  of  a  wrongful  act,  on  his  part,  not  the  mere  conclu- 
sion as  to  such  offense  and  he  promises,  if  the  facts  stated 
are  true,  to  admit  them,  or  else  he  did  not  do  the  wrong 
charged  against  him. 

1  Winter's  Tale,  Act  I,  Scene  II. 

2  3  Bl.  Comm.  208. 

8  2  Aiken,  (Vt.)  465. 
4  3  Bl.  Comm.  209. 
61  Chitty,  PI.  439. 

Mowbray,  duke  of  Norfolk,  thus  refers  to  the  father  of  his  foe, 
in  King  Richard  II  (Act  I,  Scene  I): 


176  THE  LAW  IN  SHAKESPEARE. 

"Nor.     .     .     .     Once  did  I  lay  an  ambush  for  your  life, 
A  trespass  that  doth  vex  my  grieved  soul." 
The  Duchess  of  York  thus  addresses  her  husband: 
"Ducli.    Why,  York,  what  wilt  thou  do? 

Wilt  thou  not  hide  the  trespass  of  thine  own?" 

(King  Richard  II,  Act  V,  Scene  II.) 

The  Earl  of  Worcester,  is  quoted,  in  1'  Henry  IV,  as  follows: 
"Wor.    .    .     .     My  nephew's  trespass  may  be  well  forgot, 
It  hath  the  excuse  of  youth,  and  heat  of  blood." 

(Act  V,  Scene  II.) 

The  Duke  of  Exeter  replied  to  the  Dauphin  of  Prance:  "Exe. 
.  .  caves  and  womby  vaultages  of  France  shall  chide  your 
trespass,  and  return  your  mock,  in  second  accent  of  his  ord- 
nance."    (Act  II,  Scene  III.) 

Clarence  tells  Warwick,  in  3'  Henry  VI :  "Clar.  I  am  sorry  for 
my  trespass  made."     (Act  V,  Scene  I.) 

Speaking  of  the  friendship  between  Caesar  and  Antony,  Menas 
said  to  Pompey,  in  Antony  and  Cleopatra: 
"Mew.     I  cannot  hope, 

Caesar  and  Antony  shall  well  greet  together: 
His  wife,  that's  dead,  did  trespasses  to  Caesar." 

(Act   II,   Scene   I.) 

On  the  first  meeting  between  Romeo  and  Juliet,  she  tells  him, 
on  being  kissed:  "Then  have  my  lips  the  sin  that  they  have 
took."  And  he  replies:  "Sin  from  my  lips?  O  trespass  sweetly 
urg'd:  Give  me  my  sin  again."     (Act  I,  Scene  V.) 

Before  accomplishing  her  ruin,  Tarquin  is  thus  made  to  address 
Lucrece: 

"And  thou,  the  author  of  their  obloquy 
Shalt  have  thy  trespass  cited  up  in  rhymes 
And  sung  by  children  in  succeeding  times."     (523,  525.) 

And  to  this  she  is  made  to  reply: 
"Think  but  how  vile  a  spectacle  it  were, 
To  view  thy  present  trespass  in  another."     (631,  632.) 

Lucrece  complained  that: 
"The  illiterate,  that  know  not  how 
To  cipher  what  is  writ  in  learned  books, 
Will  quote  my  loathsome  trespass  in  my  looks."     (810,  812.) 

And  the  innocent  Lucrece  concluded  that  "few  words  would  fit 
the  trespass  best."     (1612.) 


winter's  tale.  177 

Sec.  137.    Negligence  distinguished  from  wilfulness.— 

"Cam.     .     .     I  may  be  negligent,  foolish  and  fearful; 
In  every  one  of  these  no  man  is  free, 
But  that  his  negligence,  his  folly,  fear, 
Amongst  the  infinite  doings  of  the  world, 
Sometime  puts  forth:  In  your  affairs,  my  lord, 
If  ever  I  were  wilful — negligent, 
It  was  my  folly;  if  industriously 
I  played  the  fool,  it  was  my  negligence, 
Not  weighing  well  the  end."1 

The  distinction  noted  here,  between  a  mere  negligent 
act  and  an  act  wilfully  done,  will  be  best  appreciated  by 
members  of  the  legal  profession.  Simple  negligence  is  a 
failure  to  use  such  care  and  caution  as  a  reasonably  pru- 
dent man  would  exercise  under  the  circumstances,  as  a 
result  of  which  another  sustains  an  injury  in  his  person 
or  his  property.2  Wilfullness  is  a  wrongful  act,  inten- 
tionally done,  to  the  injury  of  another  in  his  person  or 
his  property.3  Because  of  the  distinction  between  the 
two,  and  the  absence  of  a  wrongful  act,  intentionally  done, 
in  the  former,  there  is  a  wide  difference  between  the  effect 
of  the  two,  upon  the  liability  of  one  charged  with  the 
effect  of  the  wrongful  act. 

The  Poet  makes  the  speaker  attempt  to  take  away  the 
element  of  willfulness  from  his  intentional  wrongful  acts, 
by  the  plea  that  such  acts  resulted  from  mere  weakness  or 
levity,  rather  than  from  a  wilfull  intent  to  wrong,  while 
his  merely  negligent  acts  were  done,  "not  weighing  well 
the  end,"  which  is  a  universal  characteristic  of  simple  neg- 
ligence. 

1  Winter's  Tale,  Act  I,  Scene  II. 

21  Thompson  on  Negligence,  Sees.  1,  15;  1  White,  Per.  Inj.  on 
R.  R.  Chapter  1. 

31  Thompson,  on  Negligence,  Sees.  20-22;  1  White,  Per.  Inj.  on 
R.  R.  Chapter  1. 

Speaking  of  the  lack  of  precaution  before  the  battle  of  Bour- 
deaux,  Talbot,  in  V  Henry  VI,  said:  "Tal.  O,  negligent  and 
heedless  discipline."     (Act  IV,  Scene  II.) 


178  THE  LAW  IN  SHAKESPEARE. 

Commenting  on  his  neglect  in  losing  his  inventory,  which 
occasioned  his  undoing,  Cardinal  Wolsey,  said,  in  King  Henry 
VIII:  "Wol.  O  negligence  fit  for  a  fool  to  fall  hy."  (Act  III, 
Scene  II.) 

Caesar  tells  Octavia,  in  Antony  and  Cleopatra: 
"Caes.    Your  letters  did  withold  our  breaking  forth; 
Till  we  perceived,  both  how  you  were  wrong  led, 
And  we  in  negligent  danger." 
And  Cleopatra  uses  this  bit  of  philosophy,  in  talking  to  Antony: 
"Cleo.    Celerity  is  never  more  admir'd, 

Than  by  the  negligent."  (Act  III,  Scenes  VI,  VII.) 

In  Cymbeline,  a  gentleman  is  made  to  say:  "1  Gent.  How- 
soe'er  'tis  strange,  or  that  the  negligence  may  well  be  laugh'd  yet 
is  it  true,  sir."     (Act  I,  Scene  I.) 

Goneril  tells  the  Steward,  in  King  Lear:  "Put  on  what  weary 
negligence  you  please,"  etc.     (Act  I,  Scene  III.) 

In  Antony  and  Cleopatra,  Augustus  speaks  of  danger  aug- 
mented by  negligence,  as  follows: 

"Your   letters   did   withold   our   breaking   forth 
Till  we  perceiv'd  both  how  you  were  wrong  led 
And  we  in  negligent  danger."  (Act  III,  Scene  VI.) 

In  Hamlet,  Laertes,  thus  speaks  of  the  death  of  his  father, 
Polonius: 

"To  this  point  I  stand, — That  both  the  worlds  I  give  to  negli- 
gence, 
Let  come  what  comes;  only  I'll  be  reveng'd  Most  thoroughly 
for  my  father."  (Act  IV,  Scene  V.) 

Before  arousing  Brabantio,  Iago  and  Roderigo,  in  Othello,  say: 
"Rod.     Here  is  her  father's  house;    I'll  call  aloud. 
Iago.     Do;  with  like  timorous  accent  and  dire  yell, 
As  when,  by  night  and  negligence,  the  fire 
Is   spied   in   populous   cities."  (Act   I,   Scene   I.) 

Speaking  of  how  she  acquired  Desdemona's  handkerchief, 
Emilia  tells  Iago,  in  Othello:  "She  let  it  drop  by  negligence; 
And,  to  the  advantage,  I,  being  here,  took't  up."  (Act  III, 
Scene  III.) 

In  the  CXVIF  Sonnet,  the  Poet  speaks  thus  of  wilfulness  and 
error : 

"Book  both  my   wilfullness   and   errors   down, 
And   on  just  proof  surmise  accumulate."     (9,   10.) 


winter's  tale.  179 

Sec.  138.    Prisoner's  fees. — 

"Her.     .     .     .     Force  me  to  keep  you  as  a  prisoner, 
Not  like  a  guest;  so  you  shall  pay  your  fees, 
When  you  depart,  and  save  your  thanks."1 

These  lines  unquestionably  refer  to  the  practice,  not 
generally  countenanced  by  the  courts,  on  the  part  of 
jailers  and  such  officers,  of  exacting  fees  from  discharged 
prisoners,  when  they  were  discharged,  regardless  of  their 
guilt  or  innocence.  Of  this  procedure,  in  England,  Lord 
Campbell  says:  "It  may  have  been  enforced  until  very 
recently,  but  could  hardly  be  known  to  any  except  law- 
yers, or  those  who  had  been  in  prison,  on  criminal 
charges."2 

Thus,  the  Poet  makes  Hermione  refer  to  a  piece  of 
English  procedure,  not  generally  known  to  the  laiety,  and 
to  enforce  a  longer  visit  from  Polixenes,  she  threatens 
him,  not  only  with  imprisonment,  but  with  the  fees,  on 
his  discharge,  that  are  usually  exacted,  on  the  liberation 
of  prisoners. 

Sec.  139.     Not  guilty.— 

"Pol.     .     .     .     Had  we  pursued  that  life, 

And  our  weak  spirits  ne'er  been  higher  reared, 

With  stronger  blood,  we  would  have  answered  heaven, 

Boldly,  Not  guilty."* 

"Not  guilty,"  is  the  plea  made  by  a  defendant,  in  a 
criminal  case  whenever  he  desires  to  place  himself  upon 


1  Winter's  Tale,  Act  I,  Scene  II. 

2  Lord  Campbell ;  Rolfe's  Winter's  Tale,  p.  167,  notes. 

Discussing  this  practice,  Mr.  Reeves,  in  his  History  of  English 
Law  (vol.  II,  p.  416)  observed:  "It  had  been  the  practice  for 
the  common  fines  to  be  assessed  promiscuously  by  the  sheriffs, 
and,  as  the  statute  says,  by  barrators;  and  upon  those  who  were 
innocent,  as  well  as  upon  the  guilty;  all  which  was  transacted 
after  the  justices  were  gone.  These  fines  were  paid  to  the 
sheriffs  and  barrators."  (Reeve's  History  Eng.  Law,  vol.  II,  p. 
416.) 

3  Winter's  Tale,  Act  I,  Scene  II. 


180  THE  LAW  IN  SHAKESPEARE. 

trial.  Such  a  plea  places  upon  the  prosecution  the  burden 
of  establishing,  by  competent  proof,  every  fact  esseniial 
to  constitute  the  offense  charged  in  the  indictment  or  in- 
formation.1 As  this  plea  raises  the  general  issue,  the  de- 
fendant can  put  in  evidence,  under  it,  any  fact  which 
negatives  the  allegation  of  the  indictment  or  information, 
as  well  as  all  matter  of  justification  or  excuse.2 

Sec.  140.     King's  prerogative. — 

"Leon.     .     .     .     Our  prerogative  calls  not  your  counsels ; 
But  our  natural  goodness  imparts  this."3 

In  Civil  Law,  a  prerogative  is  the  privilege  or  advan- 
tage which  one  person  has  over  another,  as  where  a  per- 
son is  invested  with  some  office,  he  is  held  to  be  entitled 
to  all  the  privileges  or  prerogatives  belonging  to  that 
office.4 

The  royal  prerogative,  in  English  law,  was  the  arbitrary 
power,  vested  in  the  King,  to  do  good  and  not  evil.5  Un- 
der the  law,  the  King  in  such  matters  as  that  here  consid- 


1 1  Bishop's  Cr.  Proc.  Sec.  794. 

21  Bishop's  Cr.  Proc.  1049;  2  idem.  669. 

Aside  from  recognizing  the  correctness  by  which  the  issue  of 
guilt  or  innocence  is  raised,  in  a  legal  way,  this  verse  also  notes 
that  when  innocence  is  based  upon  a  free  conscience,  the  plea 
is  entered  boldly,  without  fear  of  successful  overthrow. 

In  pleading  not  guilty  to  the  charge  of  treason  and  adultery, 
preferred  against  her,  the  good  queen,  Hermione,  said:  "Her. 
Since  what  I  am  to  say,  must  be  but  that  which  contradicts 
my  accusation;  and  the  testimony  on  my  part,  no  other  but  what 
comes  from  myself;  it  shall  scarce  boot  me  to  say,  Not  guilty." 
(Winter's  Tale,  Act  III,  Scene  II.) 

Speaking  of  Buckingham's  trial  for  treason,  in  King  Henry 
VIII,  two  gentlemen  hold  the  following  conversation:  "2  Gent. 
Is  he  found  guilty?  1  Gent.  Yes,  truly  is  he  and  condemn'd  upon 
it."     (Act  II,  Scene  I.) 

3  Winter's  Tale,  Act  II.  Scene  I. 

4  Bouvier's  Law  Dictionary. 

5  Bacon,  Abr.;   Chitty,  Prerog.;   Coke,  Litt.  90. 


WINTER  S  TALE.  181 

ered,  did  not  have  to  take  the  counsel  of  his  courtiers,  but 
was  permitted  to  follow  such  promptings  as  his  own  con- 
science suggested,  hence  the  truth  of  the  verse,  from  a 
strictly  legal  standpoint :  "Our  prerogative  calls  not  your 
counsels ;  But  our  natural  goodness  imparts  this." 

Sec.  141.     Child  born  in  prison. — 

"Paul.     You  need  not  fear  it  sir; 

The  child  was  prisoner  to  the  womb;  and  is, 
By  law  and  process  of  great  nature,  thence, 
Freed  and  enfranchis'd:  not  a  party  to 
The  anger  of  the  king;  nor  guilty  of, 
If  any  be,  the  trespass  of  the  queen."1 

This  verse  correctly  states  the  common  law  of  England 
as  to  the  protection  of  an  infant,  from  the  punishment  its 
mother  is  compelled  to  undergo.  Lawful  prisoners  were 
those  only  who  were  charged  with  some  crime  and  as 
an  infant  of  tender  years  could  not  commit  a  crime,  it 
could  not  lawfully  be  held  a  prisoner,  because  of  a  crime 
committed  by  the  mother.2 

Speaking  of  his  prerogative,  Charles,  Dauphin  of  France,  said, 
in  V  Henry  VI: 

"Char.     .    .     Shall  I,  for  lucre  for  the  rest  unvanquish'd, 
Detract  so  much  from  that  prerogative, 
As  to  be  call'd  but  viceroy  of  the  whole?" 

(Act  V,  Scene  IV.) 

In  planning  for  Coriolanus'  punishment,  Sicinius  tells  Aedile: 
"Sic.  .  .  if  I  say  fine,  cry  fine;  if  death,  cry  death;  Insisting 
on  the  old  prerogative,  And  power  i'the  truth  o'  the  cause."  (Act 
III,  Scene  ILL) 

In  King  Lear,  when  accused  of  her  intrigue  and  crimes  with 
Edmund,  Goneril  does  not  deny  it,  but  replies:  "Say,  if  I  do;  the 
laws  are  mine,  not  thine;  Who  shall  arraign  me  for  it?"  (Act 
V,  Scene  III.)  And  as  the  King  or  Queen,  could,  in  law,  do  no 
harm,  the  question,  from  a  strictly  legal  standpoint,  was  proper, 
since  no  one  could  accuse  the  queen,  or  arraign  her  for  such  an 
offense. 

1  Winter's  Tale,  Act  II,  Scene  II. 
»6  Toullier,  82,  83. 


182  THE  LAW  IN  SHAKESPEARE. 

It  was  the  practice,  established  by  the  ancient  cases  in 
the  Year  Books,  on  the  sentencing  of  a  woman,  to  always 
ask  if  she  had  anything  to  allege  why  the  execution  of  the 
sentence  ought  to  be  stayed.  If  she  replied  that  she  was 
"quick  with  child"  a  jury  of  matrons  were  summoned  to 
try  this  issue  and  if  they  found  in  the  affirmative,  the 
sentence  was  stayed  until  the  birth  of  the  infant.1  But 
a  sentence  was  not  stayed  for  pregnancy,  except  in  cap- 
ital cases  and  at  common  law,  then  only  when  the  woman 
was  with  "quick  child,"  as  the  common  law  did  not  regard 
it  a  crime  to  destroy  a  child  that  had  not  quickened.2 

Paulina  was  therefore  right  and  the  infant  Princess  was 
thence,  "By  law  and  process  of  great  nature"  free'd  and 
enfranchis'd,"  "Nor  guilty  of,  if  any  be,  the  trespass  of 
the  queen." 

Jl  Chitty,  Cr.  Law,  760;  1  Bishop's  Cr.  Proc.  Sec.  1323. 
2  3  Inst.  17;  4  Bl.  Comm.  395;  1  Hale,  P.  C.  369. 

And  not  only  was  the  death  of  an  unborn  child  that  had  not 
quickened  regarded  as  no  offense  at  common  law,  but  a  second 
pregnancy  was  held  to  be  no  bar  to  an  execution  of  a  pregnant 
woman.  2.  Hawk  P.  C.  c.  51,  Sec.  10.  But  by  statute,  in  most  of 
the  States  in  the  United  States,  killing  an  unborn  child,  before 
it  quickens,  is  held  to  be  a  crime  and  of  course  this  absurd  rule 
which  denied  a  second  child  the  benefit  of  its  life  because  of  the 
crime  of  its  mother,  would  not  obtain  at  the  present  day.  4  Bl. 
Comm.  395;  Chitty,  Cr.  Law,  760;  1  Bishop,  Cr.  Proc.  Sec.  1323. 

In  an  early  South  Carolina  case,  a  plea  of  pregnancy  was  urged 
and  after  a  trial  of  this  issue,  by  a  jury  of  matrons,  the  execu- 
tion of  the  prisoner  was  stayed.    State  vs.  Arden,  1  Bay,  487,  490. 

As  reported  by  the  old  cases,  although  according  to  strict  law, 
the  pregnancy  with  child  that  had  not  quickened,  was  no  legal 
excuse  to  the  execution  of  a  female  prisoner,  the  fact  of  a  quick 
child  was  generally  found  to  exist,  by  the  jury  of  matrons,  "be- 
cause the  gentleness  of  their  sex  generally  inclined  them"  to  find 
the  affirmative,  to  prevent  the  death  of  the  child,  in  any  event. 
2  Hale,  P.  C.  413. 

It  seems  strange  that  it  took  the  medical  profession  until  the 
last  century  to  conclude  that  unless  the  child  was  dead,  before 
it  quickened,  it  was  alive,  but  regarded  the  foetus  as  dead  until 
the  motion  was  felt  by  the  mother.    And  that  until  the  past  few 


winter's  tale.  183 

Sec.  142.     Commitment  to  jail. — 

"Paulina.     Unless  he  take  the  course  that  you  have  done, 
Commit  me  for  committing  honour,  trust  it, 
He  shall  not  rule  me."1 

A  commitment,  in  law,  is  a  writ,  issued  under  or  by 
virtue  of  an  order  or  rule  of  a  court  or  justice,  for  the 
imprisonment  of  the  prisoner  named  in  the  writ2  Com- 
mitments are  either  before  conviction,  or  after  trial  and 
conviction  is  had  of  the  offender  named  in  the  writ,  by 
some  court  having  jurisdiction  of  his  crime.3 

Paulina,  in  these  lines,  plainly  gives  the  King  to  under- 
stand that  she  will  not  be  lawfully  committed,  unless  it 
is  lawful  to  do  so,  as  he  had  done  with  Hermione.  commit 
her  to  jail  for  acting  honorably.  And  in  this  she  was 
right,  for  until  lawful  trial  and  conviction,  she  could  not 
be  committed.4 

Sec.  143.    Arraignment  of  Hermione. — 

"Offi.  Hermione,  queen  of  the  worthy  Leontes,  king  of 
Sicilia,  thou  art  here  accused  and  arraigned  of  high 
treason,  in  committing  adultery  with  Polixenes,  king 
of  Bohemia;  and  conspiring  with  Camillo,  to  take 
away  the  life  of  our  sovereign  lord  the  king,  thy 
royal  husband;  the  pretence  whereof,  being  by  cir- 
cumstances partly  laid  open,  thou,  Hermione  con- 
trary to  the  faith  and  allegiance  of  a  true  subject, 
did'st  counsel  and  aid  them,  for  their  better  safety, 
to  fly  away  by  night."5 

While  sufficient  for  the  purposes  of  the  Poet,  to  impress 
the  laity  with  the  solemnity  of  a  criminal  charge  against 

years  the  legal  profession  held  to  this  absurd  idea  and  permitted 
the  death  of  unquick  children,  without  punishing  the  party  re- 
sponsible for  such  murder.  Bishop,  Stat.  Crimes,  Sees.  744-746; 
1  Hale,  433;  Sherwood's  Cr.  Law,  13. 

1  Winter's  Tale,  Act  IT,  Scene  III. 

2  Bouvier's   Law   Dictionary. 

3  Sherwood's  Criminal   Law. 

4 II  Reeve's  History  Eng.  Law,  p.  418. 
6  Winter's  Tale,  Act  III,  Scene  II. 


184  THE  LAW  IN  SHAKESPEARE. 

the  poor  queen,  this  charge,  of  course,  lacks  all  the  essen- 
tials of  a  valid  legal  charge  or  indictment  against  Her- 
mione.  Indeed,  the  words,  "arraigned,"  "adultery"  and 
"treason,"  with  the  conclusion  of  the  charge,  "contrary," 
etc.,  are  the  only  legal  forms  adopted  in  this  entire 
charge. 

It  is  always  essential,  in  a  criminal  charge,  to  frame  the 
offense  charged  with  sufficient  defmiteness  and  descrip- 
tion of  the  crime,  with  a  statement  of  the  facts  by  which 
it  was  committed,  as  to  thoroughly  identify  the  accusa- 
tion, and  the  time  and  place  of  the  commission  of  the 
crime,  and  after  setting  forth  these  essentials,  there  are 
certain  terms  of  art  used,  which  are  adopted  in  most  in- 
dictments.1 The  commencement  and  conclusion  of  this 
charge,  however,  is  similar  to  that  followed  in  formal 
criminal  charges,  and  the  use  of  the  legal  term  "arraign," 
is  likewise  proper,  for  in  all  criminal  cases,  the  accused  is 
called  before  the  bar  of  the  court,  in  his  or  her  proper 
name;  the  charge  is  read  and  the  plea  of  guilty  or  "not 
guilty,"  is  taken  and  this,  in  law,  is  called  the  "arraign- 
ment."2 

Sec.  144.    Surmises,  not  proof  of  guilt. — 

"Her.     .     .     .     No,  life,  I  prize  it  not  a  straw: 
But  for  mine  honour,  (which  I  would  free) 
If  I  shall  be  condemned,  upon  surmises, 
All  proofs  sleeping  else,  but  what  your  jealousies 

awake, 
I  tell  you,  His  rigour  and  not  law."3 

Legal  evidence  consists  of  those  facts  within  the  knowl- 
edge of  the  witnesses  called,  legally  submitted,  upon  the 
issues  in  dispute,  as  distinguished  from  all  comments, 

*  Bacon,  Abr.,  Indictment,  (Gl) ;  1  Chitty,  Cr.  Law,  217,  224; 
297. 

'Archbold,  Cr.  PI.  (14th  ed.)   129;  1  Leach,  Cr.  Cas,   (4th  ed. 
102;   Carrington,  Cr.  Law,  57;   6  Cox,  Cr.  Cas.  386. 

8  Winter's  Tale,  Act  III,  Scene  II. 


winter's  TALE.  185 

arguments  or  "surmises"  as  to  facts  not  within  the  knowl- 
edge of  the  witnesses  who  testify  in  the  given  cause.1 
Hearsay,  or  "surmises/'  not  of  what  the  witness  knows 
himself,  but  what  he  has  heard  from  others,  is  never  ad- 
mitted in  controversies  in  a  legally  constituted  court, 
where  any  attention  is  paid  to  the  rules  of  evidence.2 

Hence,  Hermione  was  entitled  to  demand  direct  and 
primary  evidence  of  her  guilt,  instead  of  such  incom- 
petent evidence  and  she  but  proclaimed  the  law  when 
she  said:  "If  I  shall  be  condemned^  upon  surmises,  all 
proofs  sleeping  else,"  ...  "I  tell  you,  'tis  rigour 
and  not  law." 

Sec.  145.    Indictment. — 

"Leon.     Read  the  indictment."3 

An  indictment  is  a  written  accusation  against  one  or 
more  persons,  of  a  crime  or  misdemeanor,  presented  to  and 
preferred  upon  the  oath  or  affirmation  of  a  grand  jury, 
legally  convoked.4  The  term  is  used  here  as  a  synonym 
for  information,  which  is  a  charge  of  crime,  preferred 
by  a  public  prosecutor,  as  distinguished  from  such  a 
charge,  preferred  by  a  grand  jury,  regularly  impanelled 
and  sworn.5 

An  accusation  made  by  the  crown  and  found  to  be 
true  by  a  grand  jury,  furnished  the  basis  for  a  regular 
indictment,6  but  all  the  essentials  of  the  offense,  with 
such  certainty  as  to  inform  the  accused  of  the  nature 
and  cause  of  the  accusation,  were  required  to  be  set  forth 
in  such  a  formal  charge.7 

The  reading  of  the  indictment,  in  practice,  to  the  de- 


al  Greenl.  Evidence,  ch.  1;   1  Starkie,  Evid.,  part  1,  sec.  1. 
21  Starkie,  Evid.,  pt.  1,  p.  44;    1  Phillipps,  Evid.  185. 
•'Winter's  Tale,  Act  III,  Scene  II. 
4  Bacon,  Abr.,  4  Bl.  Comm.  299;  Coke,  Litt.  126. 
■  4  Bl.  Comm.  308. 

•1  Chitty,  Cr.  Law,  168;  Comyns,  Dig.;  Bacon,  Abr.,  Indictment. 
T  Bacon,  Abr.,  Indictment,   (G2) ;   Hawkins,  PI.  Cr.  b.  2,  r.  25. 
sec.  71. 


186  THE  LAW  IN  SHAKESPEARE. 

fendant,  is  a  part  of  the  formal  arraignment  of  the  pris- 
oner, hence  it  is  customary,  as  the  Poet  had  the  king 
order,  in  this  trial,  to  "read  the  indictment."1 

Sec.  146.    Torture  by  boiling  in  oil. — 

"Paul.     What  studied  torments,  tyrant,  hast  for  me? 
What  wheels?  racks?  fires?  What  flaying?  boiling, 
In  leads,  or  oils?  what  old,  or  newer  torture 
Must  I  receive;  whose  every  word  deserves 
To  taste  of  thy  most  worst?"2 

This  reference  is  clearly  to  a  unique  and  barbarous 
statute  of  the  time  of  Henry  VIII,3  inspired  by  the 
crime  of  one  Richard  Roose,  of  whose  crime  and  the 
statute  that  it  caused  to  be  enacted,  Reeves  observes: 
"Having  put  some  poison  into  a  vessel  of  yeast,  in  the 
Bishop  of  Rochester's  kitchen,  by  means  of  which  seven- 
teen persons  in  the  bishop's  family  and  several  others 
were  poisoned,  this  very  heinous  offence  raised  a  kind  of 
indignation  in  the  legislature ;  and  it  was  declared  by  that 
act,  that  the  said  poisoning  should  be  adjudged  high 
treason,  and  that  Richard  Roose  should  be  attainted  ac- 
cordingly, by  authority  of  parliament  and  should  be 
boiled  to  death;  and,  as  if  none  would  commit  this  of- 
fence but  such  as  were  of  the  same  employment  with  the 
present  offender,  it  was  enacted,  not  only  that  henceforth 
every  willful  murder  by  poisoning  should  be  high  treason, 
but  that  such  offenders  should  all  be  boiled  to  death."4 


*1  Bl.  Comm.  33;  Archbold,  Cr.  PI.  128. 

Falstaff  is  made  to  say  to  Hostess  Quickley,  in  2'  Henry  IV 
(Act  II,  Scene  IV):  "Fal.  Marry,  there  is  another  indictment 
upon  thee,  for  suffering  flesh  to  be  eathen  in  thy  house,  con- 
trary to  the  law;   for  the  which,  I  think,  thou  wilt  howl." 

In  King  Richard  III,  the  Scrivener  is  made  to  say:  "Scriv. 
Here  is  the  indictment  of  the  good  lord  Hastings."  (Act  III, 
Scene  IV.) 

2  Winter's  Tale,  Act  III,  Scene  II. 

9  22  Henry  VIII,  c.  9. 

4 IV  Reeve's  History  Eng.  Law,  p.  427. 


winter's  tale.  187 

Sec.  147.    Lawyer's  points. — 

"Serv.  He  hath  ribands  of  all  the  colours  i'the  rainbow ; 
points,  more  than  all  the  lawyers  in  Bohemia  can 
learnedly  handle,  though  they  come  to  him  by  the 

gross."1 

The  "points,"  in  a  lawsuit  are  the  legal  propositions  or 
questions,  arising  in  the  trial  of  a  case.2  It  is  very  gen- 
erally held  to  be  the  duty  of  the  Judge  to  give  an  opinion 
on  all  the  "points"  of  law  brought  to  his  attention,  by 
counsel,  in  the  trial  of  a  lawsuit,  although  the  opinion 
on  some  may  be  reserved,  for  investigation,  until  after  the 
trial  of  the  cause.3  In  the  printing  and  submission  of 
briefs,  and  written  arguments,  it  is  customary  to  submit 
first,  "the  points,"  then  the  authorities  to  sustain  the  dif- 
ferent propositions  urged  and  diligent  counsel  are  apt  to 
urge  all  the  "points"  that  either  directly  or  collaterally 
pertain  to  the  rights  of  their  clients. 

Sec.  148.     Arrested  in  the  act,  or,  "taken  with  the  man- 
ner."— 

"Clown.  Your  worship  had  like  to  have  given  us  one,  if 
you  had  not  taken  yourself  with  the  manner."4 

The  Clown  here  refers  to  the  old  legal  expression  of  be- 
ing arrested  in  the  act,  caught  with  the  stolen  article  in 
the  thief's  possession,  or  "taken  with  the  manner." 
Speaking  of  crimes  in  which  the  criminal  was  "taken  with 
the  manner,"  Bracton  and  Britton  said  that  in  such  cases 
the  crime  was  factum  manifestum*  and  Lord  Coke  com- 
menting upon  this  observation  said  that  the  criminal  was 
not  to  be  admitted  to  bail.6 


1  Winter's  Tale,  Act  IV,  Scene  III. 

2  Bouvier's  Law   Dictionary. 
*  Bouvier's  Law  Dictionary. 
♦Winter's  Tale,  Act  IV,  Scene  IV. 
"Bracton,  lib.  iii,  fol.  12;  Britton,  fol.  22. 

6  Coke,  2  Inst.  189.    And  see  also  II  Reeve's  History  Eng.  Law, 
p.  418. 


188  THE  LAW  IN  SHAKESPEARE. 

Sec.  149.    Witchcraft  and  practice  of  magical  arts. — 

"Paul.     It  is  requir'd 

You  do  awake  your  faith.     Then  all  stand  still; 
Or  those  that  think  it  is  unlawful  business 
I  am  about,  let  them  depart/'1 

As  observed  by  Doctor  Rolfe,2  this  reference  is  clearly  to 
the  statutes  against  witchcraft  and  the  practice  of  magical 
arts,  passed  during  the  reign  of  Elizabeth  and  at  other 
times  in  England. 

It  was  enacted  by  5'  Elizabeth,  c.  16,  that  anyone  guilty 
of  practicing  witchcraft,  or  enchantments,  or  using  or 
practicing  any  invocation  or  conjuration  of  fcvil  and 
wicked  spirits,  charm  or  sorcery,  whereby  anyone  shall 
happen  to  be  killed  or  destroyed,  or  wasted,  consumed, 
or  lamed,  in  body  or  member,  it  shall  be  felony  without 
clergy,  and  such  offender  shall  be  imprisoned  for  a  year 
and  stand  in  the  pillory  once  a  quarter,  for  that  time, 
for  six  hours.3 


1  Winter's  Tale,  Act  V,  Scene  III. 
'Rolfe's  Winter's  Tale,  p.  264,  notes. 
3V  Reeve's  History  Eng.  Law,  p.  349. 

The  belief  in  witchcraft,  which  crystallized  into  different 
statutes,  during  the  lifetime  of  the  Poet,  was  so  general  that 
Shakespeare  has  many  references  to  it.  In  Pericles,  Prince  of 
Tyre,  Simonides  is  made  to  say  to  the  Prince:  "Thou  hast  be- 
witch'd  my  daughter  and  thou  art  a  villain."     (Act  II,  Scene  V.) 

During  the  reign  of  William  and  Mary,  in  1692,  one  Bridgett 
Bishop  was  executed  for  witchcraft,  and  following  is  copy  of  the 
warrant  and  of  the  return  by  the  Sheriff  of  Salem,  Massachusetts: 

"To  George  Corwin  Gent'n,  High  Sheriffe  of  the  County  of  Essex 
Greeting 

WHEREAS  Bridgett  Bishop  al's  Olhver,  the  wife  of  Edward 
Bishop  of  Salem  in  the  County  of  Essex  Lawyer  at  a  special! 
Court  of  Oyer  and  Terminer  held  at  Salem  the  second  Day  of 
this  instant  month  of  June  for  the  Countyes  of  Essex  Middlesex 
and  Suffolk  before  William  Stoughton  Esqe.  and  his  associates 
of  the  said  Court  was  Indicted  and  arraigned  upon  five  several 
Indictments  for  using  practising  and  exerclseing  on  the    *     *     * 


winter's  tale.  189 

last  past  and  divers  other  dayes  and  times  the  felonies  of  Witch- 
craft in  and  upon  the  bodyes  of  Abigail  Williams,  Ann  Putt- 
nam  *  *  *  Mercy  Lewis,  Mary  Walcott  and  Elizabeth  Hub- 
bard of  Salem  Village  *  *  *  single  women;  whereby  their 
bodyes  were  hurt,  afflicted,  pined  consumed  and  tormented  con- 
trary to  the  forme  of  the  statute  in  that  case  made  and  pro- 
vided. To  which  Indictm'ts  the  said  Bridgett  Bishop  pleaded 
not  guilty  and  for  Tryall  thereof  put  herselfe  upon  God  and  her 
Country  whereupon  she  was  found  guilty  of  the  Felonyes  and 
Witchcrafts  whereof  she  stood  indicted  and  sentence  of  Death 
accordingly  passed  ag't  her  as  the  Law  directs.  Execution 
whereof  yet  remaines  to  be  done.  These  are  therefore  in  the 
names  of  their  maj'ties  William  and  Mary  now  King  and  Queen 
over  England  &c.  to  will  and  comand  you  That  upon  Fryday 
next  being  the  Tenth  Day  of  this  instant  month  of  June  between 
the  hours  of  eight  and  twelve  in  the  afornoon  of  the  same  day 
you  safely  conduct  the  s'd  Bridgett  Bishop  al's  Olliver  from 
their  maj'ties  Gaol  in  Salem  afores'd  to  the  place  of  execution 
and  there  cause  her  to  be  hanged  by  the  neck  until  she  be 
dead  and  of  your  doings  herein  make  returne  to  the  clerk  of  the 
s'd  Court  and  of  this  pr'cept.  And  hereof  you  are  not  to  faile 
at  your  peril.  And  this  shall  be  your  sufficient  warrant  Given 
under  my  hand  &  seal  at  Boston  the  eighth  of  June  in  the 
fourth  year  of  the  reigne  of  our  Sovereign  Lords  William  and 
Mary  now  King  and  Queen  over  England  &c,  Annoq'e  Dom.  1692. 

Wm.  Stoughtox." 
"June  10th,  1692. 

According  to  the  within  written  precept  I  have  taken  the  body 
of  the  within  named  Brigett  Bishop  out  of  their  majesties  goal 
in  Salem  and  safely  conveighd  her  to  the  place  provided  for  her 
execution  and  caused  y  sd  Brigett  to  be  hanged  by  the  neck  untill 
she  was  dead  all  which  was  according  to  the  time  within 
required  and  so   I  make   returne  by  me. 

George    Corwix. 

Sheriff." 

(See  "Comment,"  a  Legal  Publication,  by  Co-Op.  Pub.  Co.,  for 
May,  1910,  p.  229,  for  fac-simile  of  original  warrant  and  return.) 


CHAPTER  XIV. 

"COMEDY  OP  ERRORS." 

Sec.  150.  Earnest  to  bind  bargain. 

151.  Attachment. 

152.  Arrest. 

153.  Breach   of  Promise. 

154.  Arrest  upon  mesne  process — Debtor's  dungeon. 

155.  Action  "on  the  case." 

156.  Subornation. 

157.  Prisoner. 

Sec.  150.    Earnest  to  bind  bargain. — 

"Dromio  of  S.     Hold,  sir,  for  God's  sake:  now  your  jest 
is  earnest. 
Upon  what  bargain  do  you  give  it  me?"1 

Earnest,  or  Aries,  as  it  is  called,  in  Scotland,  from  the 
civil  law  word  arrhae,  is  a  small  sum  of  money  which  is 
given  in  proof  of  the  existence  of  the  mutual  consent, 
necessary  to  constitute  a  binding  contract.2  It  is  not 
the  earnest  which  makes  the  contract  (legal,  but  the 
mutual  consent,  evidenced  by  the  earnest,  which  is  the 
basis  of  the  bargain.  The  earnest  is  only  some  evidence 
of  the  legality  of  the  contract  and  it  may  be  preserved 
by  an  instrument  of  writing,  or  other  evidence,  in  case 
the  earnest  is  dispensed  with.  The  original  view  of 
earnest,  by  the  common  law  of  England,  was  that  it  was 
a  small  portion  of  the  price,  in  token  of  the  conclusion 
of  the  contract,3  and  this  view  seems  to  prevail  to  the  pres- 
ent day,  so  that  the  earnest  paid  is  entitled  to  be  credited 
on  the  contract  price,  as  a  part  payment,  however  small 
it  may  have  been.4 


1  Comedy  of  Errors,  Act  II,   Scene  II. 

2Lawson,  Contracts   (3d  ed.) 

3  Coke,  Inst.,  b.  iii,  tit.  iii,  s.  5 ;  Story,  on  Sales,  p.  216. 

*  Ante  idem. 

(190) 


co:.™-;  c )?  errors.  191 

Sec.  151.    Attachment. — 

"Mer.     You  know,  since  Pentacost,  the  sum  is  due, 

And  since  I  have  not  much  importun'd  you; 

Nor  now  I  had  not,  but  that  I  am  bound 

To  Persia,  and  want  guilders  for  my  voyage; 

Therefore,   make  present  satisfaction, 

Or  I'll  attach  you  by  this  officer."1 

To  attach  is  to  take  into  the  custody  of  the  law  the 
person  or  property  of  one  already  before  the  court,  or  of 
one  it  is  sought  to  bring  before  the  court.  The  writ  is 
in  the  nature  of  a  criminal  process  and  issues  from  a 
court  of  record  to  a  Sheriff  or  other  officer  commanding 
him  to  bring  the  person  named  in  the  writ  before  the 
court.2 

Of  course  at  the  time  of  Shakespeare,  in  England,  the 
law  permitted  the  creditor  to  obtain  a  writ  for  the  im- 
prisonment of  his  insolvent  debtor3  and  this  law  con- 
tinued in  effect  in  the  United  States,  until  the  different 
states  abolished  same  by  special  statutes  and  organic  law.4 

In  Two  Gentlemen  of  Verona,  the  following  occurs: 
"Speed.     No  believing  you,  indeed  sir.     But  did  you  perceive  her 

earnest? 
Valentine.    She  gave  me  none,  except  an  angry  word." 

(Act  II,  Scene  I.) 
Lear  is  made  to  say,  to  Kent,  in  King  Lear: 
"Now,  my  friendly  knave,  I  thank  thee. 
There's  earnest  of  thy  service."  (Act  I,  Scene  IV.) 

Boult  is  made  to  say,  in  Pericles,  Prince  of  Tyre:  "Master,  I 
have  gone  through,  for  this  piece,  you  see.  If  you  like  her,  so; 
if  not,   I   have  lost  my  earnest."     (Act  IV,   Scene   II.) 

1  Comedy  of  Errors,  Act  IV,  Scene  I. 

2  3  Bl.  Comm.  280;   4  idem.  283.;   Strange,  441. 

3  It  has  been  claimed  that  prior  to  the  statute  of  Hen.  Ill,  the 
debtor  could  not  be  arrested  at  common  law,  for  failure  to  dis- 
charge his  debt  (Sir  Wm.  Herbert's  case,  3  Co.  11;  Palgrave's 
Rise  and  Prog,  of  Eng.  Com.,  book  1,  p.  181),  but  this  is  denied 
by  Bracton  and  Reeves.  Bracton,  440,  441;  II  Reeve's  Hist.  Eng. 
Law,  pp.  439,  440. 

♦Imprisonment  for  debt,  was  abolished  by  statute  in  N.  Y. 
Apr.  26th,  1831;  in  Massachusetts,  in  1834;  in  Pennsylvania, 
1835;  in  Mississippi,  in  1839,  and  in  Tennessee,  in  1840. 


192  THE  LAW  IN  SHAKESPEARE. 

Hence,  at  the  time  this  play  was  written,  it  was  within 
the  power  of  a  merchant  to  arrest  his  debtor,  for  a  failure 
to  satisfy  a  debt,  admitted  to  be  due  and  the  attachment 
by  an  officer  was  the  legal  process  adopted  for  the  pur- 
pose.1 

Sec.  152.    Arrest. — 

"Ang.     Here  is  thy  fee;  arrest  him  officer; 

I  would  not  spare  my  brother  in  this  case, 

If  he  should  scorn  me  so  apparently. 
Off.     I  do  arrest  you,  sir;  you  hear  the  suit."2 

To  make  an  arrest  is  to  deprive  a  person  of  his  liberty, 
by  legal  authority;  to  seize  him  and  detain  him  in  the 
custody  of  the  law.3     At  the  time  this  play  was  written 

»2  Kent's  Comm.  (12th  ed.)   397. 

In  Comedy  of  Errors  (Act  IV,  Scene  I)  Angelo  said  to 
Antipholus:  "Ang.  This  touches  me  in  reputation:  Either  con- 
sent to  pay  this  sum  for  me,  or  I  attach  you  by  this  officer." 

And  Antipholus  said  to  the  Officer:  "Ant.  That  I  should  be 
attached  in  Ephesus:  I  tell  you,  'twill  sound  harshly  in  her 
ears."     (Comedy   of   Errors,   Act   IV,    Scene   IV.) 

In  King  Richard  II,  York  said  to  Bolingbroke: 
"York.     .     .     But,  if  I  could,  by  him  that  gave  me  life, 
I  would  attach  you  all  and  make  you   stoop 
Unto  the  sovereign  mercy  of  the  king."     (Act  II,  Scene  II.) 

Sefore  arresting  Buckingham,  in  King  Henry  VIII,  Brandon 
said:  "Bran.  Here  is  a  warrant  from  the  king  to  attach  Lord 
Montacute."     (Act  I,  Scene  I.) 

Sicinius  attempts  to  arrest  Coriolanus,  with  this  language: 
"Sic.  Go,  call  the  people;  (Exit  Brutus.)  in  whose  name, 
myself,  attach  thee,  as  a  traitrous  innovator,  a  foe  to  the  public 
weal."     (Act  III,  Scene  I.) 

Paris  tells  Romeo,  on  attempting  his  arrest  for  despoiling  the 
grave  of  the  Capulets: 

"I  do  defy  thy  conjurations, 
And  do  attach  thee  as  a  felon  here."         (Act  V,  Scene  III.) 

The  Watch,  in  Romeo  and  Juliet,  gives  direction:  "Go,  some 
of  you,  Whoe'er  you  find,  attach."     (Act  V,  Scene  III.) 

2  Comedy  of  Errors,  Act  IV,  Scene  I. 
8Bouvier's  Law  Dictionary. 


COMEDY  OF  ERRORS.  193 

it  was  one  of  the  remedies  furnished  the  creditor,  against 
his  debtor,  whereby  his  person  was  taken  and  held  as 
security  for  the  payment  of  the  debt  due.1 

Arrest  and  attachment  are  used  interchangeably,  but  in 
strictness  an  arrest  is  the  act  resulting  from  the  service  of 
an  attachment,  and  while  an  attachment  applies  as  well  to 
the  taking  of  property,  an  arrest  is  used  only  in  speaking 
of  the  seizure  of  persons.2 

Sec.  153.    Breach  of  promise. — 

"Ant.  E.     Good  lord,  you  use  this  dalliance  to  excuse, 
Your  breach  of  promise  to  the  Porcupine."3 

1  Reeve's  History,  Eng.  Law,  pp.  439,  440;   Bracton,  440. 

2  Bouvier's  Law  Dictionary. 

The  Merchant  directs  the  officer  to  arrest  Angelo,  in  Comedy 
of  Errors,  as  follows:  "Mer.  Well,  officer,  arrest  him,  at  my 
suit.  Off.  I  do;  and  charge  you,  in  the  Duke's  name,  to  obey 
me."     (Act  IV,  Scene  I.) 

Westmoreland  arrests  Archbishop  of  York,  Hastings  and  Mow- 
bray, in  2'  Henry  IV  (Act  IV,  Scene  II)  with  this  speech:  "West. 
Good  tidings,  my  lord  Hastings;  for  the  which,  I  do  arrest  thee, 
traitor,  of  high  treason:  And  you,  lord  archbishop — and  you, 
lord  Mowbray,  of  capital  treason  I  attach  you  both." 

The  following  occurs  in  the  arrest  of  Falstaff,  at  the  suit 
of  the  hostess,  in  2'  Henry  IV  (Act  II,  Scene  I):  "Fang.  Snare, 
we  must  arrest  sir  John  Falstaff. 

Host.  Yes,  good  master  Snare;  I  have  entered  him  and 
all." 

"Fang.  Sir  John,  I  arrest  you  at  the  suit  of  mistress 
Quickly." 

After  denunciation  of  the  traitors,  in  King  Henry  V,  they  were 
all  ordered  arrested  and  were  taken  into  custody  as  follows: 
"K.  Hen.  .  .  Arrest  them  to  the  answer  of  the  law  and  God 
acquit  them  of  their  practices.  Exe.  I  arrest  thee  of  high  trea- 
son, by  the  name  of  Richard,  earl  of  Cambridge. 

I  arrest  thee  of  high  treason,  by  the  name  of  Henry,  lord 
Scroop  of  Masham. 

I  arrest  thee  of  high  treason,  by  the  name  of  Thomas  Grey, 
knight  of  Northumberland."     (Act  II,  Scene  II.) 

3  Comedy  of  Errors,  Act  IV,  Scene  I. 


194  THE  LAW  IN  SHAKESPEARE. 

A  breach  of  promise  is  the  violation  or  failure  to  per- 
form some  obligation,  engagement  or  duty,  assumed  by 
the  party  so  failing.1  The  words  are  not  used  in  this 
verse  in  their  technical  legal  sense,  but  rather  in  the  sense 
that  a  mere  engagement  upon  which  no  legal  action  could 
be  maintained,  was  broken. 

Sec.  154.     Arrest    upon    mesne    process — Debtor's    dun- 
geon.— 

"Dromio  of  S.     No,  he's  in  Tartar  limbo,  worse  than  hell. 

A  devil  in  an  everlasting  garment  hath  him; 

One  whose  hard  heart  is  button'd  up  with  steel; 

A  fiend,  a  fairy,  pitiless  and  rough; 

A  wolf,  nay,  worse,  a  fellow  all  in  buff; 

A  back-friend,  a  shoulder-clapper,  one  that  counter- 
mands 

The  passages  of  alleys,  creeks,  and  narrow  lands; 

A  hound  that  runs  counter  and  yet  draws  dry  foot 
well; 

One  that  before  the  judgment  carries  poor  souls  to 
hell."2 

Dromio  means  to  convey  the  idea  that  the  arrest  has 
been  made  by  an  officer,  upon  mesne  process,3  before  final 
judgment  or  trial,  and  he  will  be  placed  in  a  debtor's 
dungeon,  which  was  meant  by  the  cant  term,  "hell."4 
By  the  terms  "back-friend"  and  "shoulder-clapper,"  he 
means  an  officer  who  approaches  from  the  rear  of  the 
person  arrested,5  and  places  him  under  arrest  by  clapping 
his  hand  upon  his  shoulder  and  so  advising  him.  This 
is  the  usual  manner  of  making  an  arrest  and  the  person  is 
just  as  much  deprived  of  his  liberty,  when  so  address't,  as 

JComyns  Did.,  C.  45-49. 

2  Comedy  of  Errors,  Act  IV,  Scene  II. 

3  Bouvier's  Law  Dictionary. 

4  There  was  a  place  under  the  Exchequer  Chamher,  where  the 
King's  debtors  were  confined,  called  "hell"  and  also  a  place  in 
Wood's  street,  given  this  name,  as  established  by  certain  old 
publications,  cited  by  Doctor  Rolfe,  in  Comedy  of  Errors,  p.  161. 
notes. 

"Rolfe's  Comedy  of  Errors,  p.  161,  notes. 


COMEDY  OF  ERRORS.  195 

if  he  had  been  locked  up  in  prison,  for  he  is  denied  his 
right  of  locomotion.1 

Sec.  155.    Action  "on  the  case." — 

"Adriana.     Why,  man,  what  is  the  matter? 
Dromio  of  S.     I  do  not  know  the  matter ;  he  is  'rested  on 
the  case."2 

An  action  on  the  case  is  a  cause  of  action  for  an  injury 
done  by  some  tort,  or  wrongful  act  of  the  party  causing 
the  injury,  although  the  injury  was  not  the  direct  result 
of  the  wrong  intended,  as  where  one  negligently  leaves  an 
obstruction  in  a  street  or  pass-way  and  the  obstruction 
causes  an  injury,  the  injured  one  could  sue  in  an  action 
on  the  case."3  Of  course  Dromio  gets  the  legal  terms 
mixed,  in  this  instance,  for  as  Antipholus  was  arrested  in 
an  action  of  debt,  or  on  a  contract,  it  was  not  an  "action 
on  the  case"  at  all,  but  for  the  breach  of  an  obligation 
assumed  by  a  contract  or  upon  an  implied  assumpsit  to 
pay  the  reasonable  value  for  the  chain,  which  would  be 
an  entirely  different  kind  of  an  action,  in  law.4 

Sec.  156.     Subornation. — 

"Ant.  E.  Thou  hast  suborn'd  the  goldsmith  to  arrest  me."5 
Suborn  is  to  procure  privately  or  secretly,  as  where  one 
is  incited  to  perform  a  criminal  or  bad  action,  by  bribe 
or  persuasion.6 

1  Newell  on  Mai.  Pros,  and  False  Arrest. 

2  Comedy  of  Errors,  Act  IV,  Scene  II. 

3  Cooley's  Torts. 
4Lawson's  Contracts  (3d  ed.). 

Speaking  of  the  action  of  trespass  upon  the  case,  during  the 
reigns  of  Henry  VI  and  Edward  IV,  Reeves  observes,  in  his 
History  of  English  Law:  "The  action  most  favored  was  that  of 
trespass  upon  the  case,  which,  during  these  two  reigns,  expended 
itself  in  a  manner  that  made  it  applicable  to  numberless  cases 
for  which  the  common  law  had  not  before  provided  any  rem- 
edy."    Ill  Reeve's  History  Eng.  Law,  p.   559. 

5  Comedy  of  Errors,  Act   IV,  Scene  IV. 

6  Bouvier's  Law  Dictionary. 


196  THE  LAW  IN  SHAKESPEARE. 

In  law,  when  one  is  procured  to  take  a  false  oath,  he  is 
said  to  have  been  "suborned"  to  commit  perjury  and  the 
one  who  so  procures  him  to  falsely  testify  is  said  to  be 
guilty  of  subornation  of  perjury.1 

*2  Chitty,  Cr.  Law,  317. 

In  Macbeth,  Macduff  is  made  to  say:     "They  were  suborn'd; 
Malcolm  and  Donalbain,  the  king's  two  sons, 
Are  stolen  away  and  fled;   which  puts  upon  them 
Suspicion  of  the  deed."  (Macbeth,  Act  II,  Scene  IV.) 

In  r  Henry  IV,  Hotspur  is  made  to  say,  to  Northumberland: 
"Hot.  But  shall  it  be  that  you, — that  set  the  crown  upon  the 
head  of  this  forgetful  man;  and,  for  his  sake,  wear  the  detested 
blot  of  murd'rous  subornation."     (Act  I,  Scene  III.) 

In  2'  Henry  IV  (Act  IV,  Scene  I)  Westmoreland  thus  addresses 
the  archbishop  of  York: 

"West.    When  ever  was  your  appeal  denied? 
Wherein  have  you  been  gall'd  by  the  king? 
What  peer  hath  been  suborn'd  to  grate  on  you?" 
The  Poet  makes  Joan  of  Arc  say  to  the  Shepard,  in  1'  Henry  VI: 
"Pue.    Peasant  avaunt;   you  have  suborn'd  this  man, 

Of  purpose  to  obscure  my  noble  birth."  (Act  V,  Scene  IV.) 
Suffolk  thus  pleads  against  the  good  Gloster,  in  2'  Henry  VI: 
"Suff.  .  .  Hath  he  not  twit  our  sovereign  lady  here,  With 
ignominious  words,  though  clerkly  couched,  As  if  she  had 
suborned  some  to  swear,  false  accusations  to  o'erthrow  his  state." 
(Act  III,  Scene  I.) 

Gloster  tells  King  Henry  VI:  "Glo.  .  .  Foul  subornation 
is  predominant  and  equity  exil'd  your  highness'  land."  (2'  Henry 
VI,  Act  III,   Scene  I.) 

Attempting  to  make  Gloster  responsible  for  the  treason  of  his 
wife,  Suffolk,  in  2'  Henry  VI,  said:  "Suff.  .  .  The  duchess, 
by  his  subornation,  upon  my  life,  began  her  devilish  practices." 
(Act   III,   Scene   I.) 

Tyrell,  in  King  Richard  III,  refers  to  Dighton  and  Forrest, 
"Whom  I  did  suborn  to  do  this  piece  of  ruthless  butchery." 
(Act  IV,  Scene  III.) 

In  speaking  of  her  husband,  Othello,  to  Emilia,  Desdemona  is 
made  to  say: 
"Des.    Beshrew  me  much,  Emilia, 

I   was,    (unhandsome  warrior  as   I  am,) 
Arraigning   his    unkindness   with   my   soul; 
But  now,  I  find,  I  had  suborn'd  the  witness, 
And   he's   indited   falsely."     (Act   III,   Scene    IV.) 


COMEDY  OF  ERRORS.  197 

Sec.  157.     Prisoner. — 

"Off.     He  is  my  prisoner;  if  I  let  him  go, 

The  debt  he  owes  will  be  required  of  me."1 

A  prisoner  is  one  held  in  confinement  against  his  will.* 
Lawful  prisoners  are  those  charged  with  crime,  or  a  civil 
liability.3  The  prisoner  in  this  instance  was  of  the  latter 
kind  and  being  arrested  on  original  process  he  was  entitled 
to  his  liberty,  only  on  proper  bail  being  provided  for  the 
payment  of  the  debt  and  if  the  officer  granted  him  his 
freedom,  it  would  be  upon  this  condition,  with  himself 
as  surety  for  the  debt.4 

The  wronged  Lucrece  complains  at  Opportunity: 
"Guilty  thou  art  of  murder  and  of  theft, 
Guilty  of  perjury  and  subornation, 
Guilty  of  treason,  forgery  and  shift, 
Guilty  of  incest,  that  abomination; 
An  accessory  by  thine   inclination 
To  all  sins  past  and  all  that  are  to  come, 
From   the   creation  to   the   general   doom."     (918,   924.) 
Defying  Time  and  Jealousy,  the  Poet  tells  his  friend,  in  the 
CXXV  Sonnet: 

"Hence,  thou  suborn'd   informer:    a  true  soul 
When  most  impeach'd  stands  least  in  thy  control."     (13,  14.) 

Comedy  of  Errors,  Act  IV,  Scene  IV. 

2  Bouvier's  Law  Dictionary. 

•6  Toullier,  82. 

4 1  Salk.  402 ;  II  Reeve's  History  Eng.  Law,  439,  440. 

After  his  arrest,  on  the  attempt  to  over-power  him,  Antipholus 
said  to  the  Officer:  "Ant.  What,  will  you  murder  me?  Thou 
gaoler,  thou,  I  am  thy  prisoner;  wilt  thou  suffer  them  to  make  a 
rescue?  Off.  Masters,  let  him  go;  He  is  my  prisoner  and  you 
shall  not  have  him."     (Comedy  of  Errors,  Act  IV,  Scene  IV.) 

In  1'  Henry  IV,  King  Henry  thus  addressed  Hotspur:  "K. 
Hen.  .  .  Send  me  your  prisoners,  with  the  speediest  means, 
or  you  shall  hear  in  such  a  kind  from  me,  as  will  displease  you." 
(Act  I,  Scene  III.) 


CHAPTER  XV. 


Sec. 


"MACBETH." 

158. 

Estate. 

159. 

Execution. 

160. 

Instigation  of  Macbeth's  crime. 

161. 

Agent. 

162. 

Trust,  from  fiduciary  relation. 

163. 

Murder. 

164. 

Malice. 

165. 

Copyhold. 

166. 

Single  ownership. 

Sec.  158.    Estate.— 

"Dun.     And  you  whose  places  are  the  nearest,  know, 
We  will  establish  our  estate  upon 
Our  eldest  Malcolm,  whom  we  name  hereafter, 
The  prince  of  Cumberland."1 

Estate  is  the  condition  and  relation  which  an  owner 
bears  toward  his  property  of  any  description.2  It  particu- 
larly includes  inheritances  and  such  properties  that  can 
be  devised  and  hence,  the  king,  here,  uses  the  term,  as 
embracing  his  earthly  acquisitions,  which  he  devolves 
upon  the  eldest  son,  where  the  law  of  England  placed  his 
property  rights.3 

1  Macbeth,  Act  I,  Scene  IV. 

2  Coke,  Litt.,  sees.  345,  650. 

3Bouvier's  Law  Dictionary,  Primogeniture. 

In  the  more  extensive  use  of  the  word,  it  signifies  everything 
of  which  riches  may  consist — and  this  is  the  sense  in  which  it 
is  used  here — and  in  the  technical  sense,  it  indicates  the  degree 
or  nature  of  one's  ownership  in  land. 

In  As  You  Like  It   (Act  I,  Scene  I)   Rosalind  said: 

"Ros.  Well,  I  will  forget  the  condition  of  my  estate,  to  rejoice 
in  yours." 

Lord  Abergavenny,  in  King  Henry  VIII,  speaking  of  the  pageant 

(198) 


MACBETH.  199 

Sec.  159.     Execution. 

"Bun.     Is  execution  done  on   Cawdor?     Are  not  those 
in  commission  yet  returned?"1 

Execution,  in  law,  is  putting  the  sentence  of  the  law 
into  force.2  A  commission  was  a  body  of  persons  author- 
ized to  act  in  some  certain  manner.3  In  the  broader  sense, 
execution  is  the  accomplishment  of  a  thing;  or  the  com- 
pletion of  an  undertaking  or  an  instrument.  And  in 
criminal  law,  it  is  the  putting  of  a  convict  to  death, 
agreeable  to  law,  in  pursuance  of  his  sentence.4 

that  ratified  the  French  treaty,  said:  "Aber.  I  do  know  kins- 
men of  mine,  three  at  least,  that  have  by  this  so  sicken'd  their 
estates,  that  never  they  shall  abound  as  formerly."  (Act  I, 
Scene  I.) 

A  stranger  says  of  Timon  of  Athens,  in  referring  to  his  finan- 
cial embarrassments:  "1  Strang.  Now  lord  Timon's  happy 
hours  are  done  and  past  and  his  estate  shrinks  from  him."  (Act 
III,  Scene   I.) 

Menenius  said  to  Virgilia,  in  Coriolanus:  "Men.  A  letter  for 
me?  It  gives  me  an  estate  of  seven  years'  health;  in  which  time 
I  will  make  a  lip  at  the  physician."     (Act  II,  Scene  I.) 

Cleopatra  tells  Caesar,  in  Antony  and  Cleopatra: 
liCleo.     See,    Caesar,    O,   behold, 

How  pomp  is  follow'd;    mine  will  now  be  yours; 
And,  should  we  shift  estates,  yours  would  be  mine." 

(Act   V,   Scene  II.) 

In  Cymbeline,  Iachimo  said  to  Posthumus,  on  making  the 
wager:  "Iach.  Would  I  had  put  my  estate,  and  my  neighbour's, 
on  the  approbation  of  what  I  have  spoke."     (Act  I,  Scene  IV.) 

The  King  tells  Rosencrantz  and  Guildenstern,  in  Hamlet,  on 
speaking  of  the  dangerous  nature  of  Hamlet's  affection: 
"King.  .  .  .  The  terms  of  our  estate  may  not  endure  Hazard 
so  near  us,  as  doth  hourly  grow  Out  of  his  lunes."  (Act  III, 
Scene   III.) 

1  Macbeth,  Act  I,  Scene  IV. 

2  3  Bl.  Comm.  412. 

3  5  Barnew.   &  C.   850. 

4  4  Bl.  Comm.  403. 


200  THE   LAW  IN  SHAKESPEARE. 

Sec.  160.    Instigation  of  Macbeth 's  crime. — 

"Macb.     My  dearest  love,  Duncan  comes  here  to-night. 

Lady  M.     And  when  goes  hence? 

Macb.     To-morrow — as  he  purposes. 

Lady  M.     0,  never  shall  sun,  that  morrow  see: 
Your  face,  my  thane,  is  as  a  book,  where  men 
May  read  strange  matters: — To  beguile  the  time, 
Look  like  the  time ;  bear  welcome  in  your  eye, 
Your   hand,    your   tongue:    look   like   the   innocent 

flower, 
But  be  the  serpent  under  it.     He  that's  coming 
Must  be  provided  for:  and  you  shall  put 
This  night's  great  business  into  my  despatch; 
Which  shall  to  all  our  nights  and  days  to  come 
Give  solely  sovereign  sway  and  masterdom."1 

In  commenting  upon  this  element  in  the  crime,  result- 
ing from  the  interference  and  influence  of  Lady  Macbeth, 
upon  the  doubt  and  indecision  of  Macbeth,  as  evidenced 
by  the  above  verse,  August  Goll,  the  Danish  criminologist, 
observes:  "When  two  wills  have  thus  been  made  to  flow 
in  unison,  a  phenomenon  arises  to  which  the  Italian 
criminologists  first  directed  attention:  there  is  thus  pro- 
duced not  only  the  sum  by  addition,  not  merely  the 
quantitatively  increased  force  wThich  the  unity  gives,  but 
also,  as  a  chemical  process,  an  entirely  new  product, 
qualitatively  different  from  the  factors  which  made  it. 
possessing  powers  and   qualities   which  neither  of  those 

factors  separately  possessed Thus,   two 

children,  neither  of  whom,  to  save  his  life,  would  dare  to 
walk  through  a  long  dark  passage  alone,  will  venture  to 
pass  it  hand  in  hand,  each  encouraging  the  other  by  the 
aid  of  his  fear  of  showing  lack  of  courage.  In  like  man- 
ner two  criminals  will  combine  to  carry  out  crimes  so 
atrocious  that  neither  of  them  can  quite  realize  afterwards 
how  he  came  to  commit  them.  Nor,  indeed,  is  it  one  of 
them   singly   who   commits   them,   but   the   co-operative 


Macbeth,   Act   I,    Scene   V. 


MACBETH.  201 

psychic  unity  in  which  each  of  them  has  merged  him- 
self."1 

Sec.  161.    Agent.— 

"Macb.     I  am  settled  and  bend  up  each  corporal  agent 
to  this  terrible  feat."2 


1  Goll's  Criminal  Types  in  Shakespeare,  (Mrs.  Weeks  tr.)  pp. 
97-99. 

Discussing  Macbeth's  acquiescence  in  the  criminal  intent  of  his 
wife,  August  Goll,  in  his  Criminal  Types  in  Shakespeare,  fur- 
ther adverts  to  the  words,  spoken  in  reply  to  his  wife's  sugges- 
tion, wherein  he  said, 

"We  will  speak  further," 
as  follows:  "Macbeth's  freedom  of  action  is  vanishing:  the 
words  are,  this  time,  perfectly  in  tune  with  Lady  Macbeth's 
guilty  speech;  it  is  only  his  own  duplicity  which,  though  badly 
enough,  still  makes  the  reservation  possible:  this  must  be  fur- 
ther discussed;  but  the  reservation  is  now  quite  subjective,  it 
exists  only  in  Macbeth's  own  mind;  it  is  there  he  reserves  the 
right  to  weigh  the  case  once  more,  ./"rom  Lady  Macbeth's  point 
of  view  the  speech  must  be  understood  as  a  veiled  promise. 
The  crime  is  coming  into  existence."  (Goll's  Criminal  Types  in 
Shakespeare,   p.    109.) 

And  commenting  further  on  this  skillful  portrayal  of  the 
instigation  of  the  murder,  Goll  observes:  "Less  eminent  psychol- 
ogists than  Shakespeare  would  probably  have  made  Lady  Mac- 
beth try  to  refute  Macbeth's  counter  reasons  in  a  logical  duel, 
following  the  complete  explanation  of  them  to  her.  .  .  Lady 
Macbeth  does  not  need  to  hear  Macbeth's  reasons  against;  she 
knows  them  all  beforehand,  because  she  knows  him  and  is  able 
to  follow  his  thoughts,  which  are  all  merely  deductions  from 
his  own  fundamentally-honest  and  socially-minded  self.  That 
is  the  reason  she  does  not  enter  into  them.  She  goes  behind 
them  all,  directs  her  attack  straight  against  this  self,  tries  to 
touch  the  chord  which  lies  deepest  in  Macbeth's  heart,  to  make 
it  beat  in  time  with  her  own  purpose."     (Pages  112,  113.) 

Lady  Macbeth's  pride  and  admiration  for  her  husband  and  her 
desire  to  see  him  the  ruler  of  the  kingdom,  is  treated  by  Magis- 
trate Goll  as  the  all  powerful  motive  which  prompts  her  course 
in  the  commission  of  the  murder  of  Duncan.  (Goll's  Criminal 
Types  in  Shakespeare,  pp.  138-140.) 

2  Macbeth,  Act  I,  Scene  VII. 


202  THE    LAW   IN   SHAKESPEARE. 

An  agent  is  one  who  undertakes  to  perform  some  given 
act  or  acts  for  his  principal,  under  the  authority  of  the 
latter.1  The  term  is  only  used  here  in  a  quasi  legal  sense, 
for  in  limiting  the  term  to  corporal  agencies,  it  means 
the  hands  and  other  organs  of  the  speaker's  body,  as  dis- 
tinguished from  persons  in  his  service. 

Sec.  162.     Trust,  from  fiduciary  relation.— 

"Macb.     He's  here  in  double  trust: 

First,  as  I  am  his  kinsman  and  his  subject, 
Strong  both  against  the  deed;  then,  as  his  host. 
Who  should  against  his  murderer  shut  the  door, 
Not  bear  the  knife  myself."2 

A  trust,  in  law,  is  an  obligation,  imposed  upon  a  person, 
arising  out  of  a  confidence  reposed  in  him  to  perform 
some  act  faithfully  and  according  to  such  confidence.3 
The  expression  here,  is  strictly  in  the  legal  use  of  the  term, 
for  Macbeth  recognizes  the  obligation  imposed  upon  him, 
by  virtue  of  the  confidence  reposed  in  him  by  his  king. 
In  other  words,  there  is  a  double  trust  arising,  because 
of  the  fiduciary  relation  existing,  of  kinsman  and  subject, 
and  then  the  entire  control  and  security  of  his  person  is 

1 1   Livermore,   Agents,   67. 

Hotspur  is  made  to  say,  to  Northumberland,  in  1'  Henry  IV 
(Act  I,  Scene  III): 

"Hot Being  the  agents  or  base  second   means, 

The  cords,  the  ladder,  or  the  hangman,  rather." 

After  being  curs'd  by  Troilus  for  Cressida's  perfidy,  Pandarus, 
says,  in  Troilus  and  Cressida:  "Paw.  .  .  O  world,  world: 
world:  thus  is  the  poor  agent  despis'd:  O  traitors  and  bawds,  how 
earnestly  are  you  set  at  work,  and  how  ill  requited."  (Act 
V,   Scene  XI.) 

In  Venus  and  Adonis,  the  organs  of  the  body  are  referred  to 
as  agents  of  the  will,  in  the  following  lines:  "But,  when  his 
glutton  eye,  so  full  hath  fed,  His  other  agents  aim  at  like 
delight."     (399,   400.) 

2  Macbeth,  Act  I,  Scene  VII. 

3  4  Kent's  Comm.  295. 


MACBETH.  203 

also  entrusted  to  him,  as  a  host,  which  would  raise  the 
obligation,  likewise,  of  seeing  to  his  personal  security, 
while  the  relation  of  host  and  guest  continued.1 

Sec.  163.     Murder.— 

"Macb.     .     .     .     Now  witchcraft  celebrates 

Pale  Hecates   offerings;   and  withered  murder, 
Alarm'd  by  his  sentinel,  the  wolf, 
Whose  howl's  his  watch,  thus  with  his  stealthy  pace, 
With  Tarquin's  ravishing  strides,  towards  his  design, 
Moves  like  a  ghost."2 

Murder  is  the  willful  killing  of  a  human  being,  with 
malice  aforethought.3  The  strongest  evidence  of  malice  is 
a  lying  in  wait,  or  such  stealth  as  that  referred  to  in  this 
verse.  The  idea  of  the  wolf  acting  as  sentinel  for  the 
murderer,  who  with  stealthy  stride  glides  to  his  victim, 
like  a  ghost,  presents  a  realistic  picture  of  the  murderer, 
with  all  the  legal  essentials  of  the  crime. 

*A  "Hospitator,"  at  law,  who  was  a  host,  or  entertainer,  was 
bound  to  look  after  the  security  of  his  guest,  so  the  Poet  but 
expresses,  in  this  "double  trust,"  the  law  as  it  then  existed. 

2  Macbeth,  Act  II,  Scene  I. 

31    Russell,    Crimes,    421;    Coke,    3'    Inst,    47. 

In  this  same  play,  the  Poet  has  Macbeth  also  soliloquize: 
"Methought  I  heard  a  voice  cry,  sleep  no  more:  Macbeth  does 
murder  sleep,  the  innocent  sleep,"  etc.  (Macbeth,  Act  II, 
Scene  II.) 

And  again,   he   said:     "Most   sacrilegious   murder  hath  broke 
ope  the  Lord's  annointed  temple,  and  stole  hence  the  life  o'  the 
building."     (Macbeth,  Act  II,  Scene  III.) 
And  while  at  the  banquet,  Macbeth  suddenly  exclaims: 
"Blood  hath  been  shed  ere  now,  i'the  olden  time, 
Ere  human  statute  purg'd  the  gentle  weal; 
Aye,  and  since  too,  murders  have  been  perform'd 
Too  terrible  for  the  ear:   the  times  have  been 
That,  when  the  brains  were  out,  the  man  would  die, 
And  there  an  end;   but  now,  they  rise  again, 
With  twenty  mortal  murders  on  their  crowns, 
And  push  us  from  our  stools:    This  is  more  strange 
Than  such  a  murder  is."         (Macbeth,  Act  III,  Scene  IV.) 


204  THE  LAW  IN  SHAKESPEARE. 

Macbeth  and  Lady  Macbeth,  are  discussed  by  August  Goll,  as 
belonging  to  a  type  of  political  criminals,  different  in  ambitions 
and  motives  from  that  of  Brutus,  but  interesting  and  true  types 
in  themselves.  With  other  criminal  types  presented  in  the 
plays,  this  scientist  takes  Shakespeare's  criminals  as  true  repre- 
sentatives of  the  different  classes  considered.  Of  course  Mac- 
beth's  murderous  purpose  is  first  suggested  by  the  witches,  but 
after  this  it  needs  no  encouragement,  though  the  poison  of  his 
meditated  guilt,  at  times  causes  him  some  misgivings  and  falter- 
ings;  his  ambition  and  thirst  for  power  launches  him  upon  the 
career  of  crime  and  these,  with  the  affection  for  his  wife,  which 
also  appeals  to  him  in  this  line,  overcame  all  conscientious 
scruples  and  moral  reflections.  Each  murder,  however,  so  works 
upon  his  conscience  that  his  remorse  is  finally  most  piteous  and 
the  character  is  truly  portrayed,  throughout,  of  the  political 
criminal,  with  such  skill  that  in  modern  times  the  character  is 
selected  for  the  student  of  "criminal  types,"  as  furnishing  a 
much  better  study  and  one  truer  to  life  than  the  criminals  met 
with  in  confinement,  or  their  mendacious  reports  of  their  crimes 
and  criminal  instincts,  or  those  of  other  writers  or  students  of 
the  subject.     (Goll's  Criminal  Types  in  Shakespeare,  p.  78.) 

In  King  Richard  II,  the  Duchess  of  Gloster  said  to  Gaunt  (Act 
I,  Scene  II): 

"Duch.     ...     In  suffering  thus  thy  brother  to  be  slaughter'd, 
Thou  show'st  a  naked  pathway  to  thy  life, 
Teaching  stern  murder  how  to  butcher  thee." 
Douglas  replied  to  Hotspur,  in   1'  Henry   IV:     "Doug.     Now, 
by  my  sword,  I  will  kill  all  his  coats;   I'll  murder  all  his  ward- 
robe, piece  by  piece,  until  I  meet  the  king."     (Act  V,  Scene  III.) 
Warwick  thus  speaks  to  Gloster  and  the  bishop  of  Winchester, 
in  1'  Henry  VI:     "War.    You  see  what  mischief  and  what  mur- 
der  too,   hath   been   enacted   through   your   enmity."     (Act    III, 
Scene  I.) 

Replying  to  his  accusers,  Gloster,  in  2'  Henry  VI,  is  made  to  say: 
"Glo.     .     .     Unless  it  were  a  bloody  murderer, 

Or  foul  felonious  thief  that  fieec'd  poor  passengers, 
I  never  gave  them  condign  punishment: 
Murder,  indeed,  that  bloody  sin,  I  tortur'd 
Above  the  felon,  or  what  trespass  else."     (Act  III,  Scene  I.) 
King  Henry  abjures  the  duke  of  Suffolk  after  Gloster's  death, 
in  2'  Henry  VI: 

"K.  Hen.    .     .    Upon  thy  eyeballs,  murderous  tyranny, 
Sits  in  grim  majesty,  to  fright  the  world." 

(Act   III,  Scene   II.) 


MACBETH.  205 

Sec.  164    Malice.— 

"Ban.     .     .     .     Fears  and  scruples  shake  us: 

In  the  great  hand  of  God  I  stand;  and,  thence, 
Against  the  undivulg'd  pretence  I  fight 
Of  treasonous  malice."1 

Malice  is  the  doing  of  a  wrongful  or  illegal  act,  inten- 
tionally, without  just  cause  or  excuse.2  Malice  is  not, 
necessarily,  confined,  to  the  specific  intention  of  doing 
an  injury  to  a  particular  person  but  it  extends  to  an  evil 
design  and  wicked  notion  against  someone  at  the  time 
of  committing  the  crime.3  Hence,  Banquo  fights  against 
the  "undivulg'd  pretence  of  treasonous  malice/'  meaning 
that  the  design  is  to  get  rid  of  all  who  stand  in  the  way 
of  the  ambitions  of  Macbeth,  and  against  this  evil  inten- 
tion, he^  as  but  one  of  the  objectionable  objects  of  his 
malice,  must  fight. 

Suffolk  resents  the  charge  of  murdering  Gloster,  in  2'  Henry 

VI,  as  follows: 

"Suff.     .     Why,  Warwick,  who  should  do  the  duke  to  death, 
Myself,  and  Beaufort,  had  him  in  protection; 
And  we,  I  hope  sir,  are  no  murderers."     (Act  III,  Scene  II.) 
Warwick  thus  upbraids  Suffolk,  in  2'  Henry  VI: 

"War.    But  that  the  guilt  of  murder  bucklers  thee, 
And  I  should  rob  the  deathsman  of  his  fee, 
Quitting  thee  thereby  of  ten  thousand  shames, 
And  that  my  sovereign's  presence  makes  me  mild, 
I  would,  false  murderous  coward,  on  thy  knee, 
Make  thee  beg  pardon  for  thy  passed  speech, 
And  say,  it  was  thy  mother  that  thou  meant'st,' 
That  thou  thyself  wast  born  in  bastardy: 
And,  after  all  this  fearful  homage  done, 
Give  thee  thy  hire  and  send  thy  soul  to  hell." 

(Act    III,   Scene   II.) 
Queen  Margaret,  on  the  death  of  her  son,  in  3'  Henry  VI,  said: 

"Q.   Mar.    What's   worse  than  murder,   that   I   may   name   it?" 

(Act  V,  Scene  V.) 

1  Macbeth,  Act  II,   Scene  III. 
2 1  Chitty,  Criminal  Law,  242. 
"Bacon,  Max.  Reg.  15. 


206  THE  LAW  IN  SHAKESPEARE. 

In  King  Richard  II,  the  following  occurs  between  King  Rich- 
ard and  the  Duke  of  Lancaster: 

"K.  Rich.    Tell  me,  moreover,  hast  thou  sounded  him. 
If  he  appeal  the  duke  on  ancient  malice; 
Or  worthily,  as  good  a  subject  should. 
On  some  known  ground  of  treachery  in  him? 
Gaunt.    As  near  as  I  could  sift  him  on  that  argument, 
On   some  apparent   danger  seen   in   him, 
Aim'd  at  your  highness;  no  inveterate  malice."     (Act  I,  Scene  I.) 

In  2'  Henry  IV,  Falstaff  replies  to  the  Chief  Justice:  "Fal.  .  . 
all  the  other  gifts  appertinent  to  man,  as  the  malice  of  this  age 
shapes  them,  are  not  worth  a  gooseberry."    (Act  I,  Scene  II.) 

Warwick,  in  1'  Henry  VI,  said  of  the  Bishop  of  Winchester: 
"War.  An  uproar,  I  dare  warrant,  begun  through  malice  of  the 
bishop's  men."      (Act  III,  Scene  I.) 

King  Henry  VI,  thus  upbraids  the  Bishop  of  Winchester,  for 
refusing  the  olive  branch  of  peace  offered  by  Gloster:  "K.  Hen. 
Fie,  uncle  Beaufort,  I  have  heard  you  preach  that  malice  was 
a  great  and  grievous  sin."     (Act  III,  Scene  I.) 

Gloster  tells  the  Bishop  of  Winchester,  in  1'  Henry  VI: 
"Glo.    .     .     Besides,  I  fear  me,  if  thy  thoughts  were  sifted, 
The  king,  thy  soverign,  is  not  quite  exempt, 
From  envious  malice  of  thy  swelling  heart." 

(Act  III,  Scene  I.) 

Speaking  of  the  Cardinal,  in  2'  Henry  VI,  Gloster  said:  "Glo. 
.  .  Churchman  so  hot?  good  uncle  hide  such  malice;  with 
such  holiness  can  you  do  it."     (Act  II,  Scene  I.) 

Gloster,  after  his  arrest,  tells  the  king,  in  2'  Henry  VI: 
"Glo.  .  .  Beaufort's  red  sparkling  eyes  blab  his  heart's  malice, 
And  Suffolk's  cloudy  brow,  his  stormy  hate."     (Act  III,  Scene  I.) 

The  wicked  Margaret  is  made  to  say,  in  2'  Henry  VI,  referring 
to  the  trial  of  Gloster,  whom  she  had  conspired  to  have  mur- 
dered: "Q,  Mar.  God  forbid  any  malice  should  prevail,  that  fault- 
less should  condemn  a  nobleman."  (Act  III,  Scene  II.) 

Edward  tells  Warwick,  in  3'  Henry  VI:  "K.  Edw.  Though 
fortune's  malice  overthrows  my  state,  My  mind  exceeds  the  com- 
pass of  her  wheel."     (Act  IV,  Scene  III.) 

Replying  to  the  request  of  the  Dukes  of  Norfolk  and  Suffolk 
to  deliver  himself  to  their  custody,  Cardinal  Wolsey  said,  in 
Henry  VIII:  "Wol.  Till  I  find  more  than  a  will,  or  words,  to  do  it, 
(I  mean,  your  malice,)  I  know,  officious  lords,  I  dare  and  must 
deny  it.    Now  I  feel  of  what  coarse  metal  ye  are  molded, — envy. 

Follow  your  envious  courses,  men  of  malice."     (Act  III,  Scene  II.) 


MACBETH.  207 

Sec.  165.    Copyhold.— 

"Macb.     0,  full  of  scorpions  is  my  mind,  dear  wife: 

Thou  know'st  that  Banquo  and  his  Fleance  lives. 
Lady  M.     But  in  them  nature's  copy's  not  eterne."1 

This  has  reference  to  the  common  law  copyhold  estate 
or  tenure.  That  is,  the  copy,  or  lease  by  which  they 
hold  their  lives,  by  nature,  has  its  certain  time  of  termina- 
tion and  is  not  to  be  eternal. 

A  copyhold  estate  was  originally  an  estate  at  the  will 
of  the  lord  of  the  manor,  agreeable  to  custom,  evidenced 
by  entries  on  the  roll  of  the  courts  baron.2  The  tenure  of 
the  tenant  of  such  an  estate  was  by  copy  of  court  roll, 
hence  the  term,  copyholder.3 

Sec.  166.    Single  ownership. — 

"Macd.     What  concern  they? 

The  general  cause?  or  is  it  a  fee-grief, 
Due  to  some  single  breast."4 

Fee,  is  used  in  the  sense  of  ownership,  and  is  meant 
to  convey  the  idea  of  a  several  or  single  right  or  owner- 
ship rather  than  such  ownership  in  common.  A  grief  due 
to  the  commission  of  some  public  calamity  would  be  one 
which  affected  the  public  or  general  weal,  as  distinguished 
from  that  of  an  individual's  welfare,  hence  the  distinction 
noted,  in  Macduff's  question. 

Cranmer,  in  King  Henry  VIII,  tells  his  peers:  "Cran.  .  . 
Men,  that  make  Envy,  and  crooked  malice,  nourishment,  dare 
bite  the  best."     (Act  V,  Scene  II.) 

1  Macbeth,  Act  III,  Scene  II. 

2  2   Bl.   Comm.    95. 

»2  Bl.  Comm.  95;  Tiedeman,  R.  P.   (3'ed.)   19,  23. 

•Macbeth,  Act  IV,  Scene  III. 

By  reference  to  Holinshed's  and  Buchanan's  history  of  Scot- 
land, it  will  be  seen  that  the  Poet,  in  Macbeth,  has  adhered 
strictly,  in  plot  and  scope  of  the  play  to  the  traditions  of  history. 
In  giving  the  interview  between  Malcolm  and  Macduff,  at  the 
English  Court,  the  text  of  the  play,  in  part  uses  the  same 
language  as  that  of  history  and  the  conversation  is  presented  in 
the  same  order. 


CHAPTER  XVI. 

"KING   JOHN." 


Sec.  167. 

Controversy— Judgment  on. 

168. 

Descent  to  eldest  son. 

169. 

Bastard's  right  to  inheritance. 

170. 

Child  begot  when  father  not  infra  quatuor  maria, 

171. 

Legitimacy  of  child  born  during  lawful  wedlock. 

172. 

Testamentary  disposition,  disinheriting  bastard. 

173. 

Landed  'Squire. 

174. 

Seduction. 

175. 

Arbitration. 

176. 

Usurpation — Denial  of  rights. 

177. 

Equity. 

178. 

Canon  of  the  Law. 

179. 

Abstract  and  Brief. 

180. 

Indenture. 

181. 

Rape. 

182. 

Interrogatories. 

183. 

Tithes— Toll. 

184. 

Laws'  redress  of  wrongs. 

185. 

Keeping  the  Peace. 

186. 

Source  of  Sovereign  power. 

Sec.  167.    Controversy — Judgment  on. — 

"Essex.     My  liege,  here  is  the  strangest  controversy, 
Come  from  the  country  to  be  judged  by  you, 
That  ere  I  heard:  Shall  I  produce  the  men?"1 

A  controversy  is  any  dispute  arising  between  two  or 
more  persons  and  the  word  is  frequently  used  to  apply 
to  an  issue  over  questions  of  law,  to  be  submitted  to  one 
of  authority  for  a  decision.  The  word  is  not  so  broad 
as  the  word  case,  which  applies  to  suits  of  a  criminal  as 
well  as  a  civil  nature,  so  the  term  is  used  here  in  regard 
to  an  issue  over  property  rights.2 

1  King  John,  Act  I,  Scene  I. 
3  Bouvier's  Law  Dictionary. 

(208) 


KING  JOHN.  209 

Sec.  168.    Descent  to  eldest  son. — 

"K.  John.     What  art  thou? 

Rob.     The  son  and  heir  to  that  same  Faulconbridge. 
K.  John.     Is  that  the  elder,  and  art  thou  the  heir? 
You  came  not  of  one  mother,  then,  it  seems."1 

The  seeming  surprise  of  the  king,  that  the  younger  son 
should  be  the  heir  of  the  father,  if  they  came  from  one 
mother,  is  because  of  the  rule  of  the  English  law,  which 
devolved  the  estate  of  the  parent  upon  the  eldest  son.2 
This  was  the  rule  of  primogeniture,  which  gave  the  first 
born  the  estate  of  the  parent.3 

Sec.  169.    Bastard's  right  of  inheritance. — 

"Bast.     Most  certain  of  one  mother,  mighty  king, 
That  is  well  known;  and,  as  I  think,  one  father; 
But,  for  the  certain  knowledge  of  that  truth, 
I  put  you  o'er  to  heaven  and  to  my  mother ; 
Of  that  I  doubt,  as  all  men's  children  may. 

Eli.     Out   on   thee,   rude   man:    thou   dost   shame   thy 
mother, 
And  wound  her  honour  with  this  diffidence. 

Bast.     I,  madam?  no,  I  have  no  reason  for  it; 
That  is  my  brother's  plea  and  none  of  mine; 
The  which,  if  he  can  prove,  'a  pops  me  out 
At  least  from  fair  five  hundred  pounds  a  year; 
Heaven  guard  my  mother's  honour  and  my  land. 

K.  John.     A  good  blunt  fellow: — Why,  being  younger 
born, 
Doth  he  lay  claim  to  thine  inheritance? 

Bast.     I  know  not  why,  except  to  get  the  land, 
But  once  he  slander'd  me  with  bastardy: 
But  whe'r  I  be  as  true  begot,  or  no, 
That  still  I  lay  upon  my  mother's  head; 
But  that  I  am  as  well  begot,  my  liege, 
(Fair  fall  the  bones  that  took  the  pains  for  me:) 
Compare  our  faces  and  be  judge  yourself. 


1  King  John,  Act  I,  Scene  I. 

2  2  Bl.  Comm.  214,  215. 
3Tiedeman,  R.   P.    (3'  ed.)    Sec.   474. 


210  THE  LAW  IN  SHAKESPEARE. 

K.  John.     Sirrah,  speak,  what  doth  move  you  to  claim 
your  brother's  land? 

Bast.     Because  he  hath  a  half-face,  like  my  father; 
With  that  half -face,  would  he  have  all  my  land : 
A  half -faced  groat  five  hundred  pounds  a  year."1 

Phillip's  reference  to  the  claim  of  his  brother  to  his 
land,  because  of  his  own  bastardy,  is  a  recognition  of  the 
legal  basis  for  his  suit.  At  common  law  a  bastard  had 
no  inheritable  blood.2  He  was,  in  the  eye  of  the  law, 
nullius  filius,  and  was  incapable  of  inheriting,  as  an  heir, 
either  to  his  putative  father,  or  his  mother,  or  to  any  one 
else,  nor  could  he  have  heirs,  save  of  his  own  body.3 
This  rule  was  supposed  to  be  founded  in  policy,  to  dis- 
courage illicit  intercourse,  but  if  the  rule  of  law,  instead 
of  visiting  the  crime  of  the  parent  upon  the  issue  of 
the  illicit  act,  had  prevented  the  mother  from  inheriting 
from  the  bastard,  it  would  have  better  achieved  this  pur- 
pose, than  it  did,  in  permitting  her  to  take  of  the  bastard, 
but  denying  him,  the  innocent  party,  this  right,  as  to  her 
land  or  other  property.4 

While  a  man  was  held  to  be  a  bastard,  although  born 
during  coverture,  under  circumstances  where  it  was  im- 
possible for  the  husband  of  his  mother  to  have  been  his 
father,5  the  proof  of  such  a  fact  had  to  be  of  a  very  strong 
and  cogent  nature  to  overcome  the  presumption  of  legiti- 
macy, of  a  child  born  after  lawful  wedlock,6  hence  the 
reference  of  this  issue,  by  Phillip,  to  his  mother,  as  the 
most  competent  witness  on  this  issue,  his  father  being 
dead.7 


1King  John,  Act  I,  Scene  I. 

8  2  Kent's  Comm.  210;   Coke,  Litt.,  123b. 

•1  Bl.  Comm.  459. 

4  Gilbert,  Tenures,  20;   4  Kent's  Comm.  417. 

«1  Bl.  Comm.  458. 

•Gardner,  Peerage  Case,  Le  M.  Rep;   1  Bl.  Comm.  458. 

7  The  evidence  of  the  mother  is  not  admissable  to  prove  access 
or  non-access,  it  is  held,  in  the  United  States.  2  Kent's  Comm. 
212;  29  Pa.  420;   15  Ga.  160. 


KING  JOHN.  211 

Sec.  170.     Child  begot  when  father  not  infra  quatuor 
maria. — 

"Rob.     My  gracious  liege,  when  that  my  father  liv'd, 
Your  brother  did  employ  my  father  much; — 

And  once,  dispatched  .him  in  an  embassy 
To  Germany,  there,  with  the  emperor, 
To  treat  of  high  affairs,  touching  that  time; 
The  advantage  of  his  absence  took  the  king, 
And  in  the  meantime  sojourn'd  at  my  father's; 
Where  now  he  did  prevail,  I  shame  to  speak; 
But  truth  is  truth;  large  length  of  seas  and  snores, 
Between  my  father  and  my  mother  lay 
(As  I  have  heard  my  father  speak  himself) 
When  this  same  lusty  gentleman  was  got. 
Upon  his  death  bed  he  by  will  bequeath'd 
His  lands  to  me;  and  took  it  on  his  death, 
That  this,  my  mother's  son,  was  none  of  his; 
And,  if  he  were,  he  came  into  the  world, 
Full  fourteen  weeks  before  the  course  of  time. 
Then,  good  my  liege,  let  me  have  what  is  mine, 
My  father's  land,  as  was  my  father's  will."1 

This  verse  presents  the  substance  of  Robert's  claim  to 
his  brother's  land,  because  of  the  bastardy  of  Phillip. 

Edmond  is  made  to  say,  in  King  Lear,  regarding  his  inability 
to  inherit,  as  a  bastard,  from  his  father:  "Let  me,  if  not  by  birth, 
have  lands  by  wit:  All  with  me's  meet,  that  I  can  fashion  fit." 
(Act  I,  Scene  II.) 

In  King  Lear,  Gloster  speaks  of  his  legitimate  son,  as  his  heir, 
or  son,  "by  order  of  law,"  in  the  following  lines: 

"Glo.  But  I  have,  sir,  a  son  by  order  of  law,  some  year  elder 
than  this,  who  yet  is  no  dearer  in  my  account."     (Act  I,  Scene  I.) 

Gloster  tells  Edmund,  in  King  Lear:  "Loyal  and  natural  boy, 
I'll  work  the  means  to  make  thee  capable,"  meaning  that  he  will 
remove  the  legal  impediment,  because  of  his  bastardy,  so  he  can 
inherit  land.     (Act  II,  Scene  I.) 

Tarquin  taunts  the  honest  Lucrece  that  after  his  crime  her 
children  or  issue  shall  be  "blurr'd  with  nameless  bastardy."  (521.) 

A  bastard  did  not  know  his  father  and  hence,  could  have  no 
name,  and  was  known  at  law  as  without  an  inheritance,  or 
nullius  fllius. 

1  King  John,  Act  I,  Scene  I. 


212  THE  LAW  IN  SHAKESPEARE. 

The  embassy  of  his  father  is  mentioned  to  bring  his  case 
within  the  rule  of  law,  that  to  establish  bastardy  against 
one  born  of  lawful  wedlock,  it  must  be  shown  that  the 
husband  of  the  mother  was  where  he  could  have  had  no 
access  to  her  during  the  period  of  gestation.  From  the 
time  of  the  Year  Books,  until  the  early  part  of  the  last 
century,  the  issue  of  a  married  woman  was  made  legiti- 
mate, except  on  proof  of  the  impotency  of  the  husband 
or  that  he  was  "beyond  the  four  seas,"  during  the  period 
of  gestation.1  In  other  words,  if  the  claim  had  been 
presented  by  other  than  hearsay  evidence,  on  Robert's 
part,  in  establishing  that  his  father  was  not  infra  quatuor 
maria,  when  Phillip  was  begot,  he  established  a  prima 
facia  case,  at  common  law,  to  the  land  of  his  father,  which 
the  bastardy  of  his  brother  would  have  prevented  him 
from   inheriting.2 

^oke,  Litt.,  244;    1  Bl.  Comm.  456,  457. 
21  Bl.  Comm.  455. 

Ever  since  the  case  of  Pendrell  vs.  Pendrell,  Str.  925,  the  doc- 
trine of  issue  born  of  lawful  wedlock,  is  illegitimate  if  the  hus- 
band was  infra  quatuor  maria,  has  been  exploded,  and  the  fact 
of  access  or  non-access  is  to  be  determined  like  any  other  fact 
in  the  case,  by  competent  evidence.  See  Nicholas,  Treatise  on 
Law  of  Adulterine  Bastardy,  1836. 

In  urging  the  false  accusation  of  King  Edward's  bastardy, 
against  his  own  mother,  to  accomplish  the  overthrow  of  the 
children  of  his  dead  brother,  King  Richard  III  said  to  Buck- 
ingham: "Glo.  .  .  Tell  them,  when  that  my  mother  went  with 
child, 

Of  that  insatiate  Edward,  noble  York, 

My  princely  father,  then  had  wars  in  France; 

And,  by  just  computation  of  the  time, 

Found,  that  the  issue  was  not  his  begot.,' 

(Act  III,  Scene  V.) 
Richard  asks  Buckingham,  touching  his  false  circulation  of 
the  bastardy  of  his  dead  brother,  Edward:  "Glo.  Touch'd  you 
the  bastardy  of  Edward's  children?"  And  Buckingham  replies: 
"Buck.  .  .  his  own  bastardy,  As  being  got,  your  father  then 
in  France;  And  his  resemblance,  being  not  like  the  duke." 
(King  Richard  III,  Act  III,  Scene  VII.) 


KING  JOHN.  213 

Sec.  171.    Legitimacy  of  child  born  during  lawful  wed- 
lock.— 

"K.  John.     Sirrah,  your  brother  is  legitimate; 

Your  father's  wife  did,  after  wedlock,  bear  him : 
And,  if  she  did  play  false,  the  fault  was  hers; 
Which  fault  lies  on  the  hazards  of  all  husbands 
That  marry  wives.     Tell  me,  how,  if  my  brother, 
Who,  as  you  say,  took  pains  to  get  this  son, 
Had  of  your  father  claimed  this  son  for  his? 
In  sooth,  good  friend,  your  father  might  have  kept 
This  calf,  bred  from  his  cow,  from  all  the  world; 
In  sooth,  he  might :  Then,  if  he  were  my  brother's, 
My  brother  might  not  claim  him;  no/ your  father, 

Being  none  of  his,  refuse  him :  This  concludes, 

My  mother's  son  did  get  your  father's  heir; 

Your  father's  heir  must  have  your  father's  land."1 

The  decision  as  to  the  legitimacy  of  Phillip  was  strictly 
according  to  the  legal  standards  existing  at  the  time  this 
play  was  written.  The  rule  of  law  was  formerly  very 
strict  in  favor  of  the  legitimacy  of  a  child  born  of  a 
married  woman.  While  the  point  was  not  necessary  to 
the  decision  of  the  cases  and  the  remarks  on  this  head 
were  more  or  less  obiter ,  it  was  decided  in  two  early  Eng- 
lish cases,2  that  there  must  be  non-access  established  dur- 
ing the  whole  period  of  pregnancy,  in  order  to  bastardize 
the  issue.  Rolle,  states  the  law  then  to  be,  "By  the  law 
of  the  land  no  man  can  be  a  bastard  who  is  born  after 
marriage,  unless  for  special  matter,"3  and  Mr.  Justice 
Blackstone,  speaking  of  the  old  doctrine  says :  "If  the  hus- 
band be  out  of  England,  (or  as  the  law  somewhat  loosely 
phrases  it,  extra  quatuor  maria)  for  above  nine  months, 
so  that  no  access  to  his  wife  can  be  presumed,  her  issue 
during  that  period  shall  be  bastards.  But  generally,  (he 
adds,  with  reference  to  the  latter  determination,  engraft- 
ed on  the  old  rule,)   during  the  coverture,  access  of  the 


1  King  John,  Act  I,  Scene  I. 

I  Regina  vs.  Murray,  Salk.  122;  Rex  vs.  Albertson,  1  Lord  Ray, 
395;   Salk.  484;   Carth,  469. 

I I  Rol.  Abr.  358,  tit.  Bastard,  letter  B. 


214  THE  LAW  IN  SHAKESPEARE. 

husband  shall  be  presumed,  unless  the  contrary  can  be 
shown."1  It  was  decided  that  bastardy  would  not  be 
found,  when  it  was  not  shown  that  the  husband  had  been 
"beyond  seas,"  for  forty  weeks  before  the  birth  of  the 
child  ;2  it  was  generally  held  essential,  even  in  later  times, 
to  establish  the  absolute  impossibility  of  access  of  the 
husband  during  the  natural  period  of  gestation,3  and  Lord 
Ellenborough,  in  a  case  decided  the  early  part  of  the  last 
century,  refused  to  enter  into  the  realm  of  mere  probabili- 
ties, in  such  a  case,  but  required  a  showing  of  absolute 
physical  impossibility  of  the  husband's  being  the  father 
of  the  child.4 

As  the  case  made,  on  the  facts  presented,  did  not  pre- 
sent such  strong  probative  force  as  to  overcome  the  legal 
presumption  of  legitimacy,  the  inheritance,  as  a  conse- 
quence of  the  conclusion  against  the  bastardy  of  Phillip, 
would  go  to  him. 

Sec.  172.    Testamentary   disposition    disinheriting   bas- 
tard.— 

"Rob.     Shall  then  my  father's  will  be  of  no  force, 
To  dispossess  that  child  which  is  not  his? 

Bast.     Of  no  more  force,  to  dispossess  me,  sir, 
Than  was  his  will  to  get  me,  as  I  think."5 

The  rule  of  the  common  law  was  that  illegitimate  chil- 
dren did  not  take,  under  a  testamentary  devise  to  the 
testator's  children,  and  it  was  necessary  that  there  should 
be  evidence  collected  from  the  will  itself,  or  from  other 
competent  source,  to  show  affirmatively  that  the  testator 
intended  that  his  illegitimate  children  should  inherit  his 
estate,  or  they  were  not  included.6     Of  course,  where  the 


»B1.  Comm.  457. 

3  Rex  vs.  Albertson,  Carthew,  468,  9. 
3Goodright  vs.  Saul,  4  Term.  Rep.  356. 
"King  vs.  Luffe,  8  East,  193,  p.  207. 
"King  John,  Act  I,  Scene  I. 

"See  opinion  of  Master  of  the  Rolls,  in  Bagley  vs.  Mollard,  1 
Russ.  &  My.  581. 


KING  JOHN.  215 

fact  of  illegitimacy  is  established  by  competent  evidence, 
if  the  testator's  will  expressly  decided  against  the  illegiti- 
mate child,  then  it  would  be  doing  violence  to  his  intent, 
to  permit  such  a  child  to  inherit  his  land,  and  this  is 
the  rule  invoked  by  Eobert,  in  this  verse. 

Sec.  173.    Landed  'Squire.— 

"K.  John.     Go,  Faulconbridge ;  now  hast  thou  thy  de- 
sire, 
A  landless  knight  makes  thee  a  landed  'squire."1 

"Squire"  is  a  contraction  of  the  word  esquire,  which 
was  a  title  applied  by  courtesy  to  various  officers,  mem- 
bers of  the  bar  and  others.  The  use  of  the  term  confers  no 
particular  distinction  in  law,  but  it  was  a  title,  in  England, 
above  that  of  a  gentleman  and  below  that  of  a  knight. 
The  eldest  son  of  a  knight  and  their  eldest  sons,  in  per- 
petual succession,  were  one  class  of  esquires2  and  justices 
of  the  peace  and  others  who  bore  any  office  of  trust  under 
the  crown,  were  called  esquires.  Robert,  as  the  eldest  son 
of  a  knight,  was  thus  properly  entitled  to  the  term,  as  ap- 
plied to  him  by  King  John. 


*King  John,  Act  I,  Scene  I. 
3  Camden. 

Speaking  of  Shallow,  Falstaff  said,  in  2'  Henry  IV  (Act  III, 
Scene  II):  "Fal.  .  .  And  now  is  this  Vice's  dagger  become  a 
'squire;  and  talks  as  familiarly  of  John  of  Gaunt,  as  if  he  had 
been  sworn  brother  to  him." 

Shallow  answers  to  Bardolph  as  follows:  "Shal.  I  am  Robert 
Shallow,  sir;  a  poor  esquire  of  this  county  and  one  of  the  king's 
justices  of  the  peace:  What  is  your  good  pleasure  with  me?" 
(2'  Henry  IV,  Act  III,  Scene  II.) 

Referring  to  his  desertion,  before  the  battle  of  Patay,  Talbot 
said  of  Fastolfe  in  V  Henry  VI: 
"Tal.    .    .    Before  we  met,  or  that  a  stroke  was  given, 

Like  to  a  trusty  'squire,  did  run  away."      (Act  IV,  Scene  I.) 

Before  fighting  Cade,  Iden,  said,  in  2'  Henry  VI:  "Iden.  Nay, 
it  shall  ne'er  be  said,  while  England  stands,  That  Alexander  Iden, 


216  THE   LAW  IN  SHAKESPEARE. 

Sec.  174.     Seduction. — 

"Bast.     .     .     .     But,  mother,  I  am  not  sir  Robert's  son, 
I  have  disclaimed  Sir  Robert  and  my  land. 
Legitimation,  name  and  all  is  gone : 
Then,  good,  my  mother,  let  me  know  my  father: 
Some  proper  man,  I  hope;  who  was  it  mother? 

Lady  F.     Hast  thou  denied  thyself  a  Faulconbridge  ? 

Bast.     As  faithfully  as  I  deny  the  devil. 

Lady  F.     King  Richard  Coeur-de-lion  was  thy  father ; 
By  long  and  vehement  suit  I  was  seduc'd 
To  make  room  for  him  in  my  husband's  bed."1 

Seduction,  in  criminal  law,  is  the  act  of  a  man  in  induc- 
ing a  woman  to  commit  unlawful  sexual  intercourse  with 
him.2  The  crime  may  as  well  be  committed  against  a 
married  woman,  as  against  an  unmarried  female,3  and  on 
such  a  trial  there  is  a  presumption  of  chastity  on  the  part 
of  a  woman  of  previously  good  reputation.4 


an  esquire  of  Kent,  Took  odds  to  combat  a  poor  famish'd  man." 
(Act  IV,  Scene  X.) 

And  on  presenting  Cade's  head  to  the  king,  Iden  said:  "Iden. 
Alexander  Iden,  that's  my  name;  A  poor  esquire  of  Kent,  that 
loves  his  king."     (Act  V,  Scene  I.) 

Emilia  tells  Iago,  in  Othello,  in  defending  Desdemona: 
"O,  fie  upon  him:   some  such  'squire  he  was, 
That  turn'd  your  wit  the  seamy  side  without, 
And  made  you  to  suspect  me  with  the  Moor." 

(Act  IV,  Scene  II.) 
*King  John,  Act  I,  Scene  I. 
'Bouvier's  Law  Dictionary. 
•  2  Bishop,  Cr.  Proc.  sec.  95. 
*1  Bishop's  Cr.  Proc.  1106. 

The  earl  of  Cambridge,  in  Henry  V,  said:  "Cam.  For  me, — 
the  gold  of  France  did  not  seduce."     (Act  II,  Scene  II.) 

Referring  to  the  forces  of  King  Edward,  in  3'  Henry  VI,  Exeter 
said:  "Exe.  The  doubt  is,  that  he  will  seduce  the  rest."  (Act 
IV,  Scene  VIII.) 

Cassius  reflects,  after  his  conference  with  Brutus,  over  Caesar's 
ambitious  nature:  "Cos.  Therefore  'tis  meet  That  noble  minds 
keep  ever  with  their  likes:  For  who  so  firm,  that  cannot  be 
seduc'd."   -  (Julius  Ceesar,  Act  I,  Scene  II.) 


KING  JOHN.  217 

Sec.  175.    Arbitration. — 

"Eli.     .     .     This  might  have  been  prevented  and  made 
whole, 
With  very  easy  arguments  of  love; 
Which  now  the  manage  of  two  kingdoms  must 
With  fearful  bloody  issue  arbitrate."1 

Arbitration  is  the  investigation  and  settlement  of  the 
differences  between  contending  parties,  by  one  or  more 
persons  chosen  by  the  parties,  called  arbitrators.2  Any 
matter  may  be  settled  and  finally  adjusted  by  arbitration, 
which  the  parties  themselves  might  have  settled  by  con- 
tract or  which  could  be  the  subject  of  an  action  at  law. 
The  use  of  the  word,  as  it  is  found  in  this  verse,  is  not 
strictly  in  its  legal  sense,  for  instead  of  showing  an  avoid- 
ance of  the  differences  by  agreement  to  submit  to  the 
judgment  of  disinterested  persons,  there  is  rather  an  ab- 
sence of  arbitration  and  a  conflict  over  the  rights,  not 
adjusted  by  arbitration.  But  the  word  in  its  popular 
meaning  is  used  as  the  Poet  uses  it  here. 

1  King  John,  Act  I,  Scene  I. 

2  3  Bl.  Comm.  16;  Bacon,  Abr. 

In  King  Richard  II  (Act  I,  Scene  I),  the  duke  of  Norfolk,  re- 
plies to  Bolingbroke: 

"Nor.    Let  not  my  cold  words  here  accuse  my  zeal; 
'Tis  not  the  trial  of  a  woman's  war, 
The  bitter  clamor  of  two  eager  tongues, 
Can  arbitrate  this  cause  betwixt  us  twain." 
Mortimer  welcomed  death,  in  1'  Henry  VI,  as  follows:     "Just 
death,  kind  umpire  of  men's  miseries,  With  sweet  enlargement, 
doth  dismiss  me  hence."     (Act  II,  Scene  V.) 

Hector,  replies  to  Ulysses,  who  predicts  the  fall  of  Troy,  in 
Troilus  and  Cressida,  as  follows:     "Hect.    .    .    The  emd  crowns 
all;  and  that  old  common  arbitrator,  time,  will  one  day  end  it." 
(Act  IV,  Scene  V.) 
Before  taking  the  potion,  Juliet  observes,  while  lookingon  her  dagger: 
"Twixt  my  extremes  and  me  this  bloody  knife 
Shall  play  the  umpire;   arbiting  that 
Which  the  commission  of  thy  years  and  art 
Could  to  no  issue  of  true  honor  bring." 

(Romeo  and  Juliet,  Act  IV,  Scene  I.) 


218  THE  LAW  IN  SHAKESPEARE. 

Sec.  176.    Usurpation — Denial  of  rights. — 

"Chat.     Phillip  of  France,  in  right  and  true  behalf 
Of  thy  deceased  brother  Geffrey's  son, 
Arthur  Plantagenet,  lays  most  lawful  claim, 
To  this  fair  island  and  the  territories ; 
To  Ireland,  Poictiers,  Anjou,  Touraine,  Maine; 
Desiring  thee  to  lay  aside  the  sword, 
Which  sways  usurpingly  these  several  titles; 
And  put  the  same  into  young  Arthur's  hand, 
Thy  nephew,  and  right  royal  sovereign."1 

Usurpation,  in  governmental  law,  is  the  tyrannical  as- 
sumption of  the  government  by  force,  contrary  to  and  in 
violation  of  the  constitution  of  the  country.2  Lord  Coke 
spoke  of  usurpation  arising  whenever  a  subject  used  the 
franchise  of  the  king,  without  lawful  authority,3  and  this 
is  the  sense  in  which  the  term  is  used  in  this  verse. 

Sec.  177.    Equity.— 

"K.  Phi.     .     .     .     For    this    down-trodden    equity,    we 
tread, 
In  warlike  march  these  greens  before  your  town."* 

"Equity,"  in  the  broadest  sense,  signifies  natural  jus- 
tice. In  the  meaning  given  to  the  term  by  the  Poet,  it 
denotes  equal  justice  between  contending  parties  for  the 
right.  This  is  the  moral  significance  of  the  term,  with 
reference  to  the  rights  of  parties  having  conflicting  claims. 

In  the  more  limited  use  of  the  word,  equity  is  applied 
to  the  courts  of  equity,  as  distinguished  from  the  courts 
of  law,  and  is  used  to  signify  the  remedial  procedure  by 


*King  John,  Act  I,  Scene  I. 
2Bouvier's  Law  Dictionary. 
•Coke,  Litt.  277b. 

In  2'  Henry  VI,  the  petitioner,  Peter,  when  questioned  as  to 
what  his  master  had  said  of  the  King,  said:  "Peter.  .  .  my 
master  said  that  he  was,  and  that  the  king  was  an  usurper." 
(Act  I,  Scene  III.) 

*King  John,  Act  II,  Scene  I. 


KING  JOHN.  219 

which  these  courts  grant  redress,  as  distinguished  from 
the  forms  and  proceedings  in  courts  of  law.1 

Sec.  178.    Canon  of  the  law. — 

"Const.     .     .     .     Thy  sins  are  visited  in  this  poor  child; 
The  canon  of  the  law  is  laid  on  him, 
Being  but  the  second  generation 
Removed  from  thy  sin-conceiving  womb."2 

A  canon  is  a  rule  of  doctrine  applied  to  designate  the 
ordinances  of  councils  or  the  decrees  of  the  pope.  The 
system  of  canon  law,  as  administered  in  different  coun- 
tries, varies  according  to  the  recognition  of  the  papal  rules, 
beyond  the  dominions  of  the  country  where  they  are 
announced.  The  canon  law  has  been  a  distinct  branch 
of  the  law  in  the  English  ecclesiastical  courts  for  many 
centuries,  but  the  modification  of  the  jurisdiction  of  those 
courts,  of  more  recent  years,  has  greatly  reduced  its  inde- 
pendent importance  as  a  branch  of  the  law  of  that 
country.3 

Sec.  179.    Abstract  and  brief.— 

"K.  Phi.     .     .     .     This  little  abstract  doth  contain  that 
large,  < 
Which  died  in  Geffrey;  and  the  hand  of  time 
Shall  draw  this  brief  into  as  huge  a  volume."4 

An  "abstract,"  in  law,  is  a  short  account  of  the  different 
portions  of  the  lawsuit,  with  a  synopsis  of  the  evidence 

1Bouvier's  Law  Dictionary;  Crabb's  Hist.  Eng.  Law;  Reeves' 
Hist.  Eng.  Law. 

Falstaff  said  to  his  companions,  on  dividing  the  booty  from 
the  robbery  of  the  travelers,  in  1'  Henry  IV:  "Fal.  .  .  An' 
the  Prince  and  Poins  be  not  two  arrant  cowards,  there's  no  equity 
stirring."     (Act  II,  Scene  II.) 

2  King  John,  Act  II,  Scene  I. 

'Bouvier's  Law  Dictionary;  1  Bl.  Comm.  82.  The  above  verse 
refers  to  the  biblical  injunction  that  the  sins  of  the  parent  shall 
be  visited  upon  the  children,  even  to  the  second  generation. 

♦King  John,  Act  II,  Scene  I. 


220  THE  LAW  IN  SHAKESPEARE. 

offered  at  the  trial,  or  of  the  distinctive  portions  thereof, 
sufficient  for  a  full  and  fair  consideration  of  the  cause, 
before  the  court.1  Abstracts  are  filed  in  appeal  cases,  be- 
fore the  brief  is  filed  for  the  perusal  of  the  court,  wherein 
the  cause  is  pending.  A  "brief"  is  an  abridged  state- 
ment of  the  parties'  cause,  with  a  presentation  of  the  points 
or  issues  involved  in  the  cause.2  The  object  of  the  brief 
is  to  inform  the  person  deciding  the  case  of  the  impor- 
tant points  for  him  to  consider  in  making  up  his  judg- 
ment in  the  cause.  That  the  son  of  Geffrey,  compared 
to  a  brief,  would,  by  "the  hand  of  time"  be  drawn  into 
as  huge  a  volume  as  his  father,  is  the  poetic  conclusion 
which  Shakespeare  makes  King  Phillip  draw,  from  the 
use  of  these  legal  terms. 

Sec.  180.    Indenture. — 

"Aust.     Upon  thy  cheek  lay  I  this  zealous  kiss, 
As  seal  to  this  indenture  of  my  love."3 

An  "indenture,"  at  common  law,  was  any  deed,  or  writ- 
ten instrument,  between  two  or  more  persons,  as  distin- 
guished from  a  deed  pole,  which  was  made  by  a  single 

1  Wharton,  Law  Dictionary. 

2  Bouvier's  Law  Dictionary. 

The  Duchess  of  York,  on  learning  of  the  death  of  her  grand- 
children, the  sons  of  King  Edward,  said:  "Duch.  Brief  abstract 
and  record  of  tedious  days,  Rest  thy  unrest  on  England's  lawful 
earth."     (King  Richard  III,  Act  IV,  Scene  IV.) 

Speaking  of  Antony,  Caesar,  is  made  to  say,  in  Antony  and 
Cleopatra: 
"Caes.    .    .     .    You  shall  find  there 

A  man  who  is  the  abstract  of  all  faults 

That  all  men  follow."  (Act  I,  Scene  IV.) 

Cleopatra  tells  Caesar,  in  Antony  and  Cleopatra:  "This  is  the 
brief  of  money,  plate  and  jewels,  I  am  possess'd  of."  (Act  V, 
Scene  II.) 

In  speaking  to  Polonius,  of  the  Players,  Hamlet  said:  "Ham 
.  .  .  Do  you  hear,  let  them  be  well  used;  for  they  are  the 
abstract  and  brief  chronicles  of  the  times."     (Act  II,  Scene  II.) 

"King  John,  Act  II,  Scene  I. 


KING  JOHN.  221 

individual.1  The  name  was  adopted  from  the  practice 
of  indenting  or  scolloping  the  top  or  side  of  the  instru- 
ment, with  some  word  written  over  such  indentations  and 
then  as  many  copies  were  delivered  a's  there  were  parties 
to  the  contract,  leaving  part  of  each  letter  on  either  side 
of  the  line,  so  that  the  parts  could  be  placed  together  and 
thus  authenticated.2 

As  this  form  of  agreement  was  a  specialty  contract,  a 
seal  was  necessary  thereon,  hence  the  comparison  of  the 
kiss  to  the  "seal  to  this  indenture." 

Sec.  181.    Rape.— 

"K.  Phi.     .     .     .     But  thou  from  loving  England  art  so 
far, 
That  thou  hast  under-wrought  his  lawful  king, 
Cut  off  the  sequence  of  posterity, 
Outfaced  infant  state,  and  done  a  rape 
Upon  the  maiden  virtue  of  the  crown."3 

"Rape,"  in  its  broadest  sense,  means  to  snatch,  or  seize 
with  violence,4  and  but  for  the  connection  in  which  the 

1 1  Reeve's  Hist.  Eng.  Law,  89. 

2  Coke's,  Litt.,  143b,  229a;   Tiedeman,  R.  P.    (3d  ed.)    587. 

In  1'  Henry  IV,  Prince  Henry  said  to  Francis:  "P.  Hen.  Five 
years:  by'r  lady,  a  long  lease  for  the  clinking  of  pewter.  But, 
Francis,  dar'st  thou  be  so  valiant,  as  to  play  the  coward  with 
thy  indenture,  and  to  show  it  a  fair  pair  of  heels  and  run  from 
it?"     (Act  II,  Scene  IV.) 

Hotspur  is  made  to  say  in  1'  Henry  IV:  "Hot.  Tis  the  next 
way  to  turn  tailor,  or  be  red-breast  teacher.  An'  the  indentures 
be  drawn,  I'll  away  within  these  two  hours;  and  so  come  in  when 
ye  will."     (Act   III,   Scene   I.) 

Thaliard,  in  Pericles,  Prince  of  Tyre,  observes,  that  "if  a  king 
bid  a  man  be  a  villain,  he  is  bound,  by  the  indenture  of  his 
oath,  to  be  one."     (Act  I,  Scene  III.) 

In  King  John  (Act  II,  Scene  I),  the  Duke  of  Austria  is  made 
to  say,  to  Arthur: 

"Upon  thy  cheek  lay  I  this  zealous  kiss, 
As  seal  to  this  indenture  of  my  love." 

•King  John,  Act  II,  Scene  I. 

4  The  word  is  from  the  Latin  rapere,  meaning  to  snatch,  or  seize. 


222  THE  LAW  IN  SHAKESPEARE. 

word  is  used  in  this  verse  it  might  be  implied  that  it  was 
intended  in  this  sense,  but  the  last  line  of  the  verse  leaves 
no  doubt,  but  what  the  term  was  meant  to  be  used  as  it  is 
in  criminal  law,  wherein  its  meaning  is  the  carnal  knowl- 
edge of  a  woman,  by  a  man,  forcibly  and  against  her  will.1 
In  the  perpetration  of  this  crime,  if  the  consent  of  the 
woman  was  not  voluntarily  and  freely  given,  at  the  time 
of  the  commission  of  the  offense,  her  subsequent  consent 
would  not  affect  the  guilt  of  her  wrongdoer,  and  a  female 
of  tender  years  was  incapable  of  consent  under  the  Eng- 
lish statute2  and  the  carnal  knowledge  of  such  female  was 
consequently  against  her  will  and  conclusively  presumed 
to  have  been  committed  with  violence,  hence  the  reference 
to  the  commission  of  such  a  crime  against  "the  maiden 
virtue  of  the  crown." 


*12  Coke,  37;  4  Sh.  Bl.  Comm.  213;  2  Bishop,  Cr.  Law,  942;  2 
Chit.  Cr.  Law,  810. 
2  2  Westminster,  c.  34;  18  Eliz.  c.  7,  s.  4. 

Paris  thus  attempts  to  justify  his  rape  of  Helen,  in  Troilus 
and  Cressida: 

"Par.    Sir,  I  propose,  not  merely  to  myself, 
The  pleasures  such  a  beauty  brings  with  it; 
But  I  would  have  the  soil  of  her  fair  rape 
Wip'd  off,  in  honourable  keeping  her."     (Act  II,  Scene  II.) 
The  Poet  distinguishes  between  the  act  of  carnal  knowledge 
with  one's  wife  and  the  crime  of  rape,  in  the  following  lines,  in 
Titus  Andronicus: 
"Sat.    Traitor,  if  Rome  have  law,  or  we  have  power, 

Thou  and  thy  faction  shall  repent  this  rape. 

Bas.    Rape,  call  you  it,  my  lord,  to  seize  my  own, 

My  true-betrothed  love,  and  now  my  wife?" 

(Act  I,  Scene  II.) 
In  Titus  Andronicus,  Aaron,  the  Moor,  reflects  upon  the  crime 
of  rape: 
"Aar.    And  many  unfrequented  plats  there  are, 

Fitted  by  kind  for  rape  and  villainy."     (Act  II,  Scene  I.) 
Aaron,  the  Moor,  before  his  confession,  says,  in  Titus  Andronicus: 
"Aar.    I  must  talk  of  murders,  rapes,  and  massacres, 
Acts  of  black  night,  abominable  deeds, 
Complots  of  mischief,  treason;  villanies 
Ruthful  to  hear,  yet  piteously  perform'd."     (Act  V,  Scene  I.) 


KING  JOHN.  223 

Sec.  182.    Interrogatories. — 

"K.  John.     What  earthly  name  to  interrogatories, 
Can  task  the  free  breath  of  a  sacred  king?"1 

"Interrogatories"  were  the  material  and  pertinent  ques- 
tions, in  writing,  exhibited  for  the  examination  of  wit- 
nesses, or  persons  giving  testimony  in  a  cause.2  Either 
party,  plaintiff  or  defendant,  may  generally  exhibit  orig- 
inal or  cross  interrogatories  to  the  witnesses  in  a  cause.3 
But  for  scandal  or  impertinence  interrogatories  could, 
under  certain  circumstances,  be  suppressed,4  and  the  prac- 
tice of  submitting  interrogatories  to  a  king,  never  having 
been  recognized  by  the  common  law,  is  denounced,  in  the 
opinion  of  King  John,  as  inconsistent  with  his  royal  pre- 
rogative. 

Sec.  183.    Tithes— toll.— - 

"K.  John.     .     .     .     Tell  him  this  tale;  and  from  the 
mouth  of  England, 
Add  thus  much  more, — That  no  Italian  priest 
Shall  tithe  or  toll  in  our  dominions."5 

"Tithes,"  in  English  law,  were  the  tolls  paid  by  the 
English  subjects  for  the  support  of  the  clergy  and  con- 
sisted in  the  right  of  the  clergy  to  a  tenth  part  of  the 
produce  of  land,  or  the  stock  upon  the  land  and  the 
proceeds  of  the  personal  industry  of  the  inhabitants.6 
Tithes  have  never  obtained  in  the  United  States,  but  the 
clergy  is  supported  by  the  voluntary  zeal  of  the  people  for 
religion. 

The  despairing  Lucrece,  makes  her  complaint  at  Opportunity 
that 

"Wrath,  envy,  treason,  rape,  and  murder's  rages, 
Thy  heinous  hours  wait  on  them  as  their  pages."     (909,  910). 

'King  John,  Act  III,  Scene  I. 
'Bouvier's  Law  Dictionary. 
•Bacon,  Abr.;   Hind,  Ch.  Pr.,  317. 
♦Gresley,  Eq.  Evid.  pt.  1,  ch.  3,  sec.  1. 
5  King  John,  Act  III,  Scene  I. 
•Bacon,  Abr.;  Cruise,  Dig.  22. 


224  THE  LAW  IN  SHAKESPEARE. 

Sec.  184.    Laws  redress  of  wrongs. — 

"Pand.    There's  law  and  warrant,  lady,  for  my  curse. 

Const.     And  for  mine  too;  when  law  can  do  no  right, 
Let  it  be  lawful,  that  law  bar  no  wrong : 
Law  cannot  give  my  child  his  kingdom  here; 
For  he,  that  holds  his  kingdom,  holds  the  law: 
Therefore,  since  law  itself  is  perfect  wrong, 
How  can  the  law  forbid  my  tongue  to  curse."1 

That  the  Poet  understood  the  scientific  definition  of  the 
term  "law,"  is  evidenced  by  this  verse,  as  law  is  defined 
by  the  best  authority  as  "a  rule  of  civil  conduct,  com- 
manding what  is  right  and  prohibiting  what  is  wrong."2 
"When  law  can  do  no  right,"  it  ceases  to  attain  the  sole 
and  sufficient  object  of  law,  according  to  this  approved 
definition,  and  if  unable  to  enforce  the  right,  the  conclu- 
sion is  analogous  that  the  law  should  "bar  no  wrong." 
In  other  words,  since  the  law,  by  the  authority  of  the 
supreme  power  of  state,  whose  function  it  is  to  enforce 
the  law,  had  been  perverted  and  from  the  enforcement  of 
rights,  it  had  descended  to  the  enforcement  or  defense  of 
wrongs,  Constance  concluded  that  the  law  had  thus  recog- 
nized the  wrong,  instead  of  the  right,  as  the  ultimate 
object  of  the  law. 

Sec.  185.    Keeping  the  peace. — 

"Pern.     Cut  him  to  pieces. 
Bast.     Keep  the  peace,  I  say."3 

"Peace"  imports,  in  a  legal  sense,  not  merely  the  repose 
and  tranquility  of  a  community  or  state,  as  opposed  to 
violence  and  warfare,  but  it  implies,  as  well,  a  state  of 

The  Hostess  replies  to  Falstaffs  charge  of  robbery  in  her  house, 
as  follows,  in  V  Henry  IV:  "Host.  Do  you  think  I  keep  thieves 
in  my  house?  I  have  searched,  I  have  enquired,  so  has  my  hus- 
band, man  by  man,  boy  by  boy,  servant  by  servant:  the  tithe  of 
a  hair  was  never  lost  in  my  house  before."     (Act  III,  Scene  III.) 

*King  John,  Act  III,  Scene  I. 

al  Bl.  Comm.  44. 

3  King  John,  Act  IV,  Scene  III. 


KING  JOHN.  225 

public  order  and  decorum  or  a  compliance  with  the  laws.1 
Jn  reply  to  the  insistence  of  Pembroke  to  "Cut  him  to 
pieces,"  which  would  be  a  violation  of  the  law  and  a 
consequent  disturbance  of  the  peace,  Philip  enjoined  upon 
them  that  they  should  "keep  the  peace."  This  rejoinder 
is  not  only  a  request  to  comply  with  the  law,  in  legal 
terms,  but  is  also  an  apt  play  upon  the  words  used  by 
Pembroke. 

Sec.  186.    Source  of  sovereign  power. — 

"K.  John.     Thus  have  I  yielded  up  into  your  hand  the 

circle  of  my  glory. 
Pand.     Take  again,  from  this  my  hand,  as  holding  of 

the  pope, 
Your  sovereign  greatness  and  authority."2 

This  ceremony  of  coronation  is  in  keeping  with  that 
followed  in  the  day  and  time  to  which  the  play  relates, 
according  to  the  forms  of  law  then  obtaining.  The  pope 
was  regarded  not  only  as  the  head  of  the  Roman  Catholic 
church,  but  as  such,  was  the  source  for  both  temporal  and 
spiritual  power  and  while  the  ceremony  of  crowning  a 
king  whose  adherents  were  sufficiently  strong  to  give  him 
the  throne  always  seemed  to  accord  with  the  will  of  the 
church,  the  pope,  as  the  head  of  the  church  was  supposed 
to  ratify  the  granting  of  sovereignty  to  the  king. 

1  Bacon,  Abr.;   2  Bentham,  319. 

2  King  John,  Act  V,   Scene  I. 

Bolingbroke,  on  taking  the  crown,  in  King  Richard  II,  is  made 
to  say:  "Boling.  In  God's  name  I'll  ascend  the  regal  throne." 
(Act  IV,  Scene  I.) 


CHAPTER  XVII. 

"KING  RICHARD   THE   SECOND." 

Sec.  187.  Appellant. 

188.  Accuser  and  accused. 

189.  Impeachment. 

190.  Deposing,  according  to  Law. 

191.  Trial  by  battle. 

192.  Party-verdict. 

193.  Reversion. 

193a.  Dying  declarations. 

194.  Waste  upon  real  estate. 

195.  Landlord. 

196.  Lease — Tenement. 

197.  Possessed. 

198.  Royalties. 

199.  Attorneys-General. 

200.  Letters-patent. 

201.  Seize. 

202.  Fine. 

203.  Repeal. 

204.  Covenant. 

205.  Breaking   Laws. 

206.  Livery. 

207.  Attorneys. 

208.  Executors. 

209.  Failure  to  speak,  in  criminal  case — Standing  mute. 

210.  Signories. 

211.  Under  gage. 

212.  Day  of  trial. 

213.  Answer. 

214.  Crimes. 

215.  Manors. 

216.  Conspiracy. 

Sec.  187.    Appellant.— 

"Boling.     First  (heaven  be  the  record  of  my  speech:) 
In  the  devotion  of  a  subject's  love, 
Tendering  the  precious  safety  of  my  prince, 
And  free  from  other  misbegotten  hate, 
Come  I  appellant  to  this  princely  presence."1 

1King  Richard  II,  Act  I.  Scene  I. 
(226) 


RICHARD  THE  SECOND.  227 

The  appellant,  in  a  lawsuit,  is  the  party  who  appeals 
from  one  jurisdiction  or  forum  to  another,  for  the  further 
prosecution  of  his  cause.1  After  making  the  charge  or 
accusation  against  Norfolk,  Bolingbroke  followed  it  up  by 
bringing  the  same  charge  before  the  king,  when  the  right 
of  trial  by  battle  was  invoked  by  the  accused. 

Sec.  188.    Accuser  and  accused. — 

"K.  Rich.     Then  call  them  to  our  presence ;  face  to  face, 
And  frowning  brow  to  brow,  ourselves  will  hear, 
The  accuser  and  accused,  freely  speak."2 

The  accuser  is  one  who  makes  a  criminal  charge  or 
accusation  against  another,3  and  the  accused  is  one  against 
whom  such  charge  or  accusation  is  made.4  It  is  one  of 
the  rights  guaranteed  to  an  Englishman  that  when  accused 
of  a  crime  he  has  the  right  to  have  the  witnesses  brought 
before  him,  face  to  face,  hence  the  king  but  recognized 
the  lawful  right  of  Norfolk  to  have  his  accuser  face  him 
in  the  charge  of  treason,  in  the  above  verse. 

Sec.  189.    Impeachment. — 

"Nor.     .     .     My  life  thou  shalt  command,  but  not  my 
shame : 
The  one  my  duty  owes ;  but  my  fair  name, 
(Despite  of  death,  that  lives  upon  my  grave,) 

1Bouvier's  Law  Dictionary. 

The  Marshal,  in  this  play,  referring  to  Mowbray's  readiness  to 
meet  Bolingbroke,  said: 

"Mar.    The  duke  of  Norfolk,  sprightfully  and  bold, 
Stays  but  the  summons  of  the  appellant's  trumpet." 

(Act    I,    Scene   III.) 
The  Marshal  tells  the  King: 
"Mar.    The  appellant  in  all  duty  greets  your  highness, 
And  craves  to  kiss  your  hand  and  take  his  leave." 

(Act  I,  Scene  III.) 
In    Antony    and    Cleopatra,    Eros    advises    Enobarbus    that 
"Caesar,    .    .    .    accuses  him  of  letters  he  had  formerly  wrote 
to  Pompey;  upon  his  own  appeal  seizes  him."     (Act  III,  Scene  V.) 
2  King  Richard  II,  Act  I,  Scene  I. 
3Bouvier's  Law  Dictionary. 
4  Ante  idem. 


228  THE  LAW  IN  SHAKESPEARE. 

To  dark  dishonour's  use,  thou  shalt  not  have. 
I  am  disgrac'd,  impeach'd,  and  baffled  here."1 

All  civil  officers  at  common  law  were  liable  to  impeach- 
ment, which  was  a  written  accusation  against  the  officer 
or  person  impeached,  charging  him  with  treason,  bribery, 
or  other  high  crimes  or  misdemeanors.2  The  term  is  also 
used  when  applied  to  the  kind  of  evidence  which  destroys 
the  credibility  of  a  witness  in  a  cause  on  trial.3  All  wit- 
nesses are  liable  to  be  impeached  by  evidence  of  general 
reputation  for  truth  or  veracity  and  if  one's  general  char- 
acter is  good,  one  is  always  supposed,  in  law,  to  be  able 
to  defend  it. 

Impeachment  is  used  in  this  verse  in  the  sense  of  its 
application  to  an  officer,  or  a  person  charged  with  treason, 
as  this  was  the  charge  brought  against  the  duke  of  Norfolk 
by  Bolingbroke. 

Sec.  190.    Deposing,  according  to  law. — 

"J£.  Rich.     Marshall,  ask  yonder  knight  in  arms, 
Both  who  he  is,  and  why  he  cometh  hither 
Thus  plated  in  habiliments  of  war; 
And  formally,  according  to  our  law, 
Depose  him,  in  the  justice  of  his  cause."4 

1King  Richard  II,  Act  I,  Scene  I. 
2  Story,  Const.  Law,  Sec.  795. 
"Greenl.  Evid.  vol.  1. 

In  the  United  States,  the  house  of  representatives  has  the  sole 
power  of  impeachments  and  the  senate  of  the  United  States  is 
given,  by  organic  law,  the  sole  right  of  trying  impeachments. 
(Con.  U.  S.  Art.  1,  Sees.  2,  3,  c.  5,  6.) 

On  discovering  the  treason  of  his  own  son,  the  Duke  of  York 
exclaims: 
"York.    Now  by  mine  honour,  my  life,  my  troth, 

I  will  appeach  the  villain."     (Richard  II,  Act  V,   Scene  II.) 

Clarence's  son,  on  speaking  of  his  father's  death,  in  Richard 
III,  said:  "Son.  .  .  my  good  uncle  Gloster  told  me,  the  king, 
provok'd  to  it,  by  the  queen,  devis'd  impeachments,  to  imprison 
him."     (Act  II,  Scene  II.) 

♦King  Richard  II,  Act  I,  Scene  III. 


RICHARD  THE  SECOND.  229 

One  is  said  to  "depose,"  when  he  testifies  under  oath, 
or  gives  his  deposition.1  Before  a  witness  testifies,  he  is 
deposed,  or  sworn  to  tell  the  truth  in  the  cause  before  the 
court.  In  other  words,  when  a  party  to  a  cause  is  called 
as  a  witness — and  at  common  law  a  party  in  interest  was 
incompetent  as  a  witness — he  was  deposed,  "according  to 
our  law/'  as  the  king  directs  the  marshal,  in  this  verse. 

Sec.  191.    Trial  by  battle.— 

"Mar.     What  is  thy  name?  and  wherefore  com'st  thou 
hither, 
Before  king  Richard,  in  his  royal  lists? 
Against  whom  comest  thou;  and  what's  thy  quarrel? 
Speak,  like  a  true  knight,  so  defend  thee  heaven. 

Boling.     Harry  of  Hereford,  Lancaster  and  Derby, 
Am  I;  who  ready  here  do  stand  in  arms, 
To  prove,  by  heaven's  grace  and  my  body's  valour, 
In  lists,  on  Thomas  Mowbray,  duke  of  Norfolk, 
That  he's  a  traitor,  foul  and  dangerous, 
To  God  of  heaven,  king  Richard  and  to  me; 
And,  as  I  truly  fight,  defend  me  heaven. 

K.  Rich.     We  will  descend,  and  fold  him  in  our  arms, 
Cousin  of  Hereford,  as  thy  cause  is  right, 
So  be  thy  fortune  in  this  royal  fight: 
Farewell,  my  blood;  which  if  to-day  thou  shed, 
Lament  we  may,  but  not  revenge  thee  dead. 

Nor.  (Rising)     However  heaven,  or  fortune  cast  my  lot, 
There  lives  or  dies,  true  to  king  Richard's  throne, 
A  loyal,  just  and  upright  gentleman: 
Never  did  captive  with  a  freer  heart, 
Cast  off  his  chains  of  bondage  and  embrace 
His  golden  uncontroll'd  enfranchisement, 
More  than  my  dancing  soul  doth  celebrate 
This  feast  of  battle  with  mine* adversary. 


l3  Greenl.  Evid.,  sec.  11. 

Depose,  is  used  here  in  an  entirely  different  sense  than  it  is 
in  the  Act  where  Northumberland  urges  King  Richard  to  con- 
fess his  crimes,  so  that  the  souls  of  men  may  deem  that  he  was 
"worthily  deposed."     (King  Richard   II,   Act   IV,   Scene   I.) 


230  THE  LAW  IN  SHAKESPEARE. 

K.  Rich.     Farewell,  my  lord ;  securely  I  espy, 

Virtue  with  valour  couched  in  thine  eye, — 
Order  the  trial,  Marshall,  and  begin."1 

In  the  old  English  law,  issues  in  both  civil  and  criminal 
cases  were  settled,  at  an  early  day,  by  the  "trial  by  battle," 
which  had  its  basis  upon  the  supposition  that  heaven 
would  always  interpose  and  give  the  victory  to  the  cham- 
pion of  truth  and  innocence.2  The  right  to  such  a  trial 
could  be  claimed  at  the  election  of  the  accused  person,  by 
the  plea  of  not  guilty  and  by  declaring  his  readiness  to 
make  good  his  plea  by  his  body.  When  such  a  right  was 
claimed,  the  accuser  had  to  make  good  his  appeal  and  meet 
the  accused  in  mortal  combat.  A  Court  was  erected  for 
the  judges  and  after  certain  preliminaries  the  battle  com- 
menced ;  it  was  continued  from  sun-rise  until  evening  and 
if  the  accuser  cried  craven,  or  was  killed,  the  accused  was 
held  to  be  acquitted  of  the  charge.  On  the  contrary,  if 
the  accused  was  vanquished  or  killed,  he  was  adjudged 
guilty  and  hanged,  if  he  was  not  killed  in  the  battle,  and, 
in  either  case,  his  blood  was  thereafter  attainted,3  so  that 
his  heirs  were  cut  off  from  inheriting  from  him,  and  all 
his  posterity  was  made  base  and  ignoble.4 

1  King  Richard  II,  Act  I,  Scene  III. 

21  Hale,  Hist.  Com.  Law,  188. 

•3  Bl.  Comm.  337;  4  Bl.  Comm.  346. 

4  Co.  Litt.  391b.  For  history  of  English  law,  of  trial  by  battle, 
see  I  Reeve's  Hist.  Eng.  Law,  p.  393;  III  Reeve's  History  Eng. 
Law,  p.  329;   IV  Reeve's  History  Eng.  Law,  p.  58,  and  citations. 

By  way  of  further  illustration  of  this  proceeding,  a  Lord  is 
made  to  offer  the  gage  to  the  Duke  of  Aumerle,  as  follows: 
"Lord.  From  sun  to  sun,  there  is  my  honour's  pawn;  Engage  it 
to  the  trial,  if  thou  dare'st." 

And  the  Duke  of  Surrey  likewise  is  made  to  offer  battle  to  Lord 
Fitzwater,  as  follows: 

"Surrey.    In  proof  whereof,  there  is  my  honour's  pawn, 
Engage  it  to  the  trial,  if  thou  dar'st." 

(King  Richard  II,  Act  IV,  Scene  I.) 

A  trial  by  battle,  occurred  in  England  in  1571  (Dyer,  p.  801) 
and  as  late  as  1818,  after  a  full  discussion,  the  right  to  such  a 


RICHARD  THE  SECOND.  231 

trial  was  allowed  by  the  judges  in  England.  (Ashford  vs.  Thorn- 
ton, 1  Barn.  &  Aid.  405.)  This  decision  no  doubt  gave  occasion 
for  the  enactment  of  the  statute  of  59th  Geo.  Ill,  c.  46,  by  which 
this  proceeding  was  abolished  in  England. 

Vernon  and  Bassett,  implore  the  right  of  trial  by  battle,  in  1' 
Henry  VI,  as  follows: 

"7er.    Grant  me  the  combat,  gracious  sovereign: 
Bos.    And  me,  my  lord,  grant  me  the  combat,  too. 

Stubbornly  he  did  repugn  the  truth, 
About  a  certain  question  in  the  law, 

And  in  defence  of  my  lord's  worthiness, 
I  crave  the  benefit  of  law  of  arms. 

York.    Let  this  dissension  first  be  tried  by  fight, 

And  then  your  highness  shall  command  a  peace." 

(Act    IV,    Scene    I.) 
The  following  references  to  trial  by  battle,  occur  in  2'  Henry 

VI,  wherein  Horner  and  his  apprentice,  Peter  have  such  a  trial: 

"GZo.     This  doom,  my  lord,  if  I  may  judge. 

.    .    .    Let  these  have  a  day  appointed  them 

For  single  combat  in  convenient  place; 

For  he  hath  witness  of  his  servant's  malice: 

This  is  the  law,  and  this  duke  Humphrey's  doom. 

Hor.    And  I  accept  the  combat  willingly. 

Pet.    Alas,  my  lord,  I  cannot  fight;  for  God's  sake,  pity  my  case: 
the  spite  of  man  prevaileth  against  me 

York.    .     .    Please  it,  your  majesty, 

This  is  the  day  appointed  for  the  combat; 
And  ready  are  the  appellant  and  defendant, 
The  armorer  and  his  man  to  enter  the  lists, 
So  please  your  highness  to  behold  the  fight. 

Q.  Mar.    Ay,  good  my  lord;   for  purposely  therefore 
Left  I  the  court  to  see  this  quarrel  tried. 

K.  Hen.    O,  God's  name,  see  the  lists  and  all  things  fit: 
Here  let  them  end  it  and  God  defend  the  right. 

York.     .    .     .     Sound     trumpets,     alarum     to     the     combatants. 
{Alarum.    They  fight  and  Peter  strikes  down  his  master.) 


232  THE  LAW  IN  SHAKESPEARE. 

Sec.  192.    Party-verdict. — 

"K.  Rich.     Thy  son  is  banish'd  upon  good  advice, 
Whereto  thy  tongue  a  party-verdict  gave."1 

A  party-verdict,  is  used  in  the  sense  of  a  partial  verdict, 
no  doubt,  which  is  the  special  verdict  on  one  charge  or 

Hor.    Hold,  Peter,  hold;    I  confess,  I  confess  treason.     (Dies.) 
York.    Take   away   his   weapon: — Fellow,    thank   God,    and    the 

good  wine  in  thy  master's  way. 
Peter.     0  God:  Have  I  overcome  mine  enemies  in  this  presence? 

O  Peter,  thou  has  prevailed  in  right. 
K.  Hen.    Go,  take  hence,  that  traitor  from  our  sight; 

For,  by  his  death,  we  do  perceive  his  guilt; 

And,  God  in  justice  hath  reveal'd  to  us, 

The  truth  and  innocence  of  this  poor  fellow, 

Which  he  had  thought  to  have  murder'd  wrongfully. — 

Come,  fellow,  follow  us,  for  thy  reward." 

(Act  I,  Scene  III;  Act  II,  Scene  III.) 
The  trial  by  battle  is  again  shown  in  King  Lear,  when  Edgar 
and  his  bastard  brother,  Edmund,  try  their  cause  by  the  wage  of 
battle. 

After  the  proclamation  by  the  Herald  for  Edmund,  Edgar  ap- 
pears, and  the  Herald  asks  him: 
"Her.    What  are  you?  Your  name,  your  quality?    And  why  you 

answer  this  present  summons. 
Edg.    Know  my  name  is  lost;  By  treasons  tooth-bare  gnawn,  and 
canker-bit; 

Yet  am  I  noble  as  the  adversary,  I  came  to  cope  withal. 
Alb.    Which  is  that  adversary? 

Edg.    What's  he  that  speaks  for  Edmund  earl  of  Gloster 
Edm.    Himself; — What  say'st  thou  to  him? 

Edg.    Draw  thy  sword 

Edm.    In  wisdom,  I  should  ask  thy  name; 

But,  since  thy  outside  looks  so  fair  and  warlike, 

And  that  thy  tongue  some'say  of  breeding  breathes, 

What  safe  and  nicely  I  might  well  delay 

By  rule  of  knighthood,  I  disdain  and  spurn." 

(Act    V,    Scene    III.) 
By  the  rule  of  knighthood,  referred  to,  if  the  adversary  was 
BOt  of  equal  rank  with  the  challeng'd  one,  the  combat  might  be 
legally  declined. 

»King  Richard  II,  Act  I,  Scene  III. 


RICHARD  THE  SECOND.  233 

count  in  a  criminal  case,  returned  by  the  jury,  as  where 
a  verdict  for  the  accused  is  found  on  part  or  some  of  the 
charges  or  counts  in  the  indictment  and  a  verdict  against 
the  accused  in  another  form,  by  the  same  jury.1  In  other 
words,  as  Gaunt,  himself  had  advised  such  a  course,  the 
verdict  of  banishment,  the  king  maintains,  was  a  verdict 
to  which  he  gave  his  partial  consent. 

Sec.  193.    Reversion. — 

"K.   Rich.     .     .     .     Off  goes  his  bonnet  to   an   oyster- 
wench  ; 
A  brace  of  draymen  bid — God  speed  him  well, 
And  had  the  tribute  of  his  supple  knee, 
With — Thanks  my  countrymen,  my  loving  friends; 
As  were  our  England,  in  reversion  his, 
And  he  our  subjects  next  degree  of  hope."2 

A  reversion  is  the  residue  of  an  estate  in  lands,  to  com- 
mence in  possession  after  the  determination  of  a  prior 

i  Arch.  Cr.  PI.  &  Evid.  146,  147. 

Vernon  decided  in  favor  of  the  white  rose,  in  the  controversy 
between  Somerset  and  Richard  Plantagenet,  in  1*  Henry  VI,  as 
follows:  "Ver.  Then,  for  the  truth  and  plainness  of  the  case, 
I  pluck  this  pale  and  maiden  blossom  here,  Giving  my  verdict 
on  the  white  rose  side."     (Act  II,  Scene  IV.) 

Richard  Plantagenet,  in  1'  Henry  VI,  speaking  of  the  trouble 
between  Gloster  and  the  Bishop  of  Winchester,  said:  "Plan. 
Plantagenet,  I  see,  must  hold  his  tongue,  lest  it  be  said,  Speak, 
sirrah,  when  you  should;  Must  your  bold  verdict  enter  talk  with 
lordsr     (Act  III,  Scene  I.) 

A  citizen,  speaking  of  Caius  Marcius,  being  an  enemy  of  the 

people,  in  Coriolanus,  said:     "1  Cit.     Let  us  kill  him,  and  we'll 

have  corn  at  our  own  price.     I'st  a  verdict?"     (Act  I,  Scene  I.) 

Describing  her  lover,  the  "fickle  maid,"  narrated,  in  A  Lover's 

Complaint: 

"But  quickly  on  this  side  the  verdict  went: 
His  real  habitude  gave  life  and  grace 
To  appertainings  and  to  ornament, 
Accomplish'd  in  himself,  not  in  his  case."     (113,  116.) 

'King  Richard  II,  Act  I,  Scene  III. 


234  THE  LAW  IN  SHAKESPEARE. 

particular  estate  in  the  same  lands.1  In  other  words,  the 
estate  left  after  the  termination  of  a  life  estate  or  an  estate 
for  years  in  a  given  tract  of  land,  is  a  reversion,  and  the 
estate  arises  by  operation  of  law  and  not  by  deed  or  will, 
and  it  is  in  this  that  it  differs  from  a  remainder,  which  can 
only  be  limited  by  deed  or  will.2 

The  reversioner  has  the  next  right  to  the  land,  after 
the  tenant  of  the  term  is  through  with  the  land,  hence 
the  reference  to  the  kingdom,  as  vested  in  Bolingbroke, 
in  reversion,  and  the  reference  to  him  as  "our  subjects 
next  degree  of  hope." 

Sec.  194.    Waste  upon  real  estate. — 

"Gaunt.     A  thousand  flatterers  sit  within  thy  crown, 
Whose  compass  is  no  bigger  than  thy  head; 
And  yet,  encaged  in  so  small  a  verge, 
The  waste  is  no  whit  lesser  than  the  land."3 

Waste  is  any  damage  or  act  which  injures  the  inherit- 
ance of  real  estate  done  by  a  tenant  for  life  or  years,  to  the 

1Tiedeman,  R.  P.    (3d  ed.),  sec.  291. 

2  2   Bl.   Comm.   175;    4   Kent's   Comm.   349. 

In  King  Richard  II,  the  Queen  said  to  Bushy: 
"Queen.    'Tis  nothing  less:  conceit  is  still  deriv'd 
From  some  forefather  grief;  mine  is  not  so; 
For  nothing  hath  begot  my  something  grief; 
Or  something  hath  the  nothing  that  I  grieve; 
'Tis  in  reversion  that  I  do  possess."     (Act  II,  Scene  II.) 
Douglas  said  to  Hotspur,  in  1'  Henry  IV:     "Doug.    'Faith  and 
so  we  should  Where  now  remains  a  sweet  reversion."     (Act  IV, 
Scene  I.) 

In  Troilus  and  Cressida,  Troilus  speaks  of  Perfection  in  rever- 
sion, as  follows: 

"Tro.  .  .  .  Praise  us  as  we  are  tasted,  allow  us  as  we 
prove;  our  head  shall  go  bare,  till  merit  crown  it;  no  perfection 
in  reversion  shall  have  a  praise  in  present;  we  will  not  name 
desert,  before  his  birth,  and,  being  born  his  addition  shall  be 
humble."      (Act  III,  Scene  II.) 

3  Richard  II,  Act  II,  Scene  I. 


RICHARD  THE  SECOND.  234a 

Sec.  193a.    Dying  declarations.— 

"Gaunt.     0,  but  they  say  the  tongues  of  dying  men 

Enforce  attention  like  deep  harmony; 

Where  words  are  scarce,  they  are  seldom  spent  in 
vain, 

For  they  breath  truth  that  breath  their  words  in 
pain. 

He  that  no  more  must  say  is  listen  'd  more 

Than  they  whom  youth  and  ease  have  taught  to 
gloze ; 

More  are  men's  ends  mark'd  than  their  lives  be- 
fore."1 

In  these  lines  the  poet  expressed,  in  true  legal  fashion, 
the  reason  that  makes  that  class  of  hearsay  evidence, 
known  as  "dying  declarations,"  competent,  when  re- 
peated by  those  who  wrote  them  down,  or  accurately 
took  the  words  of  the  person,  made  under  the  sense  of 
impending  death,  legal  evidence,  in  courts  of  justice.2 

Dying  declarations,  or  those  statements  made  in  ex- 
tremity, by  a  person  near  the  point  of  death,  when  every 
worldly  hope  is  gone,  and  likewise  all  motives  of  false- 
hood are  forever  at  rest,  are  universally  recognized  as 
having  such  probative  force,  because  made  under  such 
powerful  considerations  as  to  impell  the  truth,  that 
courts,  like  all  men,  receive  the  statements  as  evidence  of 
the  fact  referred  to.3 

This  class  of  evidence  is  subject,  of  course,  to  certain 


1  Richard  II,  Act  II,  Scene  I. 

2  This  is  the  fourth  exception  to  the  rule  excluding  hearsay  evi- 
dence as  presented  by  Prof.  Greenleaf.  See  Greenleaf,  on  Evi- 
dence, Vol.  I;  Wigmore,  on  Evidence,  Vol.  II.  Judge  Wigmore 
has  a  most  instructive  discussion  on  this  subject  in  his  recent 
excellent  work  on  Evidence,  to  which  the  reader  is  referred. 

8  As  said  by  Lord  Chief  Baron  Eyre,  "A  situation  so  solemn 
and  so  awful  is  considered  by  the  law  as  creating  an  obligation 
equal  to  that  which  is  imposed  by  a  positive  oath,  in  a  court  of 
justice."    Greenleaf,  Evidence  supra. 


234b  THE  LAW  IN  SHAKESPEARE. 

legal  limitations,  which  it  is  not  necessary  to  present  here, 
but  the  reason  for  the  competency  of  such  hearsay  evi- 
dence, was  clearly  expressed  by  Shakespeare,  in  these 
lines,  because,  in  law,  "the  tongues  of  dying  men  enforce 
attention,"  .  .  .  "for  they  breath  truth,"  and  herein 
lies  the  reason  for  the  legal  exception  excluding  hearsay 
evidence  in  courts  of  justice. 

Discussing  the  circumstantial  guarantee  of   the   relia- 
bility of  such  statements,  arising  from  the  solemnity  of 
the   situation,   Judge   Wigmore,   referring    specially   to 
the  fact  that  this  rule  was  recognized  by  Shakespeare, 
before  it  came  generally  to  be  recognized  as  a  rule  of 
law,  says:    "All  courts  have  agreed,  with  more  or  less 
difference  of  language,  that  the  approach  of  death  pro- 
duces a  state  of  mind  in  which  the  utterances  of  the  dy- 
ing person  are  to  be  taken  as  freed  from  all  ordinary 
motives  to  misstate.     The  great  dramatist  expressed  the 
common  feeling,  long  before  it  was  announced  by  judi- 
cial opinion."4 
4 II  Wigmore,  on  Evidence,  Sec.  1438,  p.  1804. 
"Melun.    Have  I  not  hideous  death,  within  my  view, 
Retaining  but  a  quantity  of  life, 
Which  bleeds  away,  even  as  a  form  of  wax 
Resolveth  from  his  figure  'gainst  the  fire? 
What  in  the  world  should  make  me  now  deceive, 
Since  I  must  lose  the  use  of  all  deceit? 
Why  should  I  then  be  false,  since  it  is  true 
That  I  must  die  here  and  live  hence  by  truth?" 

(King  John,  Act  V,  Scene  4.) 
Horatio,  in  advising  the  Prince  of  Norway,   of  the  message 
from  dead  Hamlet,  is  made  to  say: 
"Of  that  I  shall  have  also  cause  to  speak, 
And  from  his  mouth  whose  voice  will  draw  no  more." 

(Act  V,  Scene  II.) 
In  placing  the  dead  body  of  Paris,  in  the  monument,  Romeo  is 
also  made  to  ruminate  that: 
"How  oft,  when  men  are  at  the  point  of  death 
Have  they  been  merry?  which  their  keepers  call 
A  lightning  before  death." 

(Romeo  and  Juliet,  Act  V,  Scene  II.) 


RICHARD  THE  SECOND.  235 

prejudice  of  the  reversioner  or  heir.1  A  tenant  who  cuts 
down  trees,  without  the  consent  of  his  landlord,  or  re- 
versioner,2 or  one  who  opens  mines,3  or  commits  such 
like  acts  of  injury  to  the  inheritance,  is  held  to  commit 
waste  thereon. 

Gaunt  meant  to  tell  the  King  that  in  seeking  loans 
from  the  rich  nobles  of  the  realm  and  granting  them  con- 
cessions therefor,  he  had  wasted  the  realm,  as  it  were,  for 
waste  may  be  permissive,  as  well  as  otherwise  and  the  dam- 
age is  just  as  great. 

Sec.  195.     Landlord. — 

"Gaunt.     .     .     .     Landlord  of  England  art  thou   now, 
not  king: 
Thy  state  of  law  is  bondslave  to  the  law."4 

Landlord,  in  its  popular  meaning,  is  a  term  applied  to 
one  who  owns  lands  and  rents  them  out  to  others.  In  the 
strictly  legal  sense,  at  ancient  common  law,  it  was  used  to 
indicate  the  lord  or  proprietor  of  the  land  who,  under  the 
feudal  system  retained  the  right  of  absolute  property  in 
the  soil,  or  who  had  the  fee  of  the  land,  while  his  grantee 
only  took  the  right  of  possession.5 

Gaunt  here  accuses  the  king  of  being  merely  the  lord 
paramount  or  proprietor  of  the  kingdom,  not  its  king,  in 
the  true  sense,  and  leaves  the  impression  that  his  subjects 
are  but  little  better  than  vassals,  who  only  have  the  right 
of  possession  of  the  soil,  a  condition  that  has  subverted 
the  law. 

Sec.  196.    Lease — Tenement. — 

"Gaunt.     .     .  This  land  of  such  dear  souls,  this  dear, 

dear  land, 
Dear  for  her  reputation  through  the  world, 


1Tiedeman,  R.  P.  (3d  ed.). 
2  Tiedeman,  R.  P.  (3d  ed.). 
'White,  Mines  &  Mining  Remedies. 

4  Richard  II,  Act  II,  Scene  I. 

5  Coke,  Litt.  46a;   Taylor,  Land  &  Ten.,  sec.  25. 


236  THE  LAW  IN  SHAKESPEARE. 

Is  now  leased  out   (I  die  pronouncing  it,) 
Like  to  a  tenement  or  pelting  farm."1 

A  lease  is  a  written  contract  whereby  the  possession  and 
profits  of  lands,  or  of  some  produce  therefrom,  is  granted 
either  for  life  or  a  fixed  term  of  years,  or  during  the 
pleasure  of  the  parties.2 

A  tenement  in  the  law  of  real  property,  is  anything  of  a 
permanent  nature,  which  may  be  holden,  as  a  house  or 
homestead.3 

A  pelting-farm,  was  a  farm  yielding  wool,  from  the 
skin  or  pelt  of  sheep  or  rams,  hence  was  about  the  lowest 
order  of  tenements  or  farms  leased  at  that  day  and  time. 
In  comparing  the  kingdom,  which  was  being  let  or  de- 
mised, to  such  a  leasehold,  the  dying  Gaunt  clearly  ex- 
presses his  condemnation  for  the  course  pursued  by  the 
king. 

Sec.  197.    Possessed. — 

"K.  Rich.     .     .     And  for  these  great  affairs  do  ask  some 
charge, 
Towards  our  assistance,  we  do  seize  to  us 
The  plate,  coin,  revenues,  and  movables, 
Whereof  our  uncle  Gaunt  did  stand  possess'd."4 

A  possessor,  in  the  law  of  real  property,  is  one  who 
holds,  detains  or  enjoys  such  property  under  a  claim  there- 


1  Richard  II,  Act  II,  Scene  I. 

a5  Coke,  23b;  Coke,  Litt.  57,  a. 

3  Coke,  Litt.  6a;  Bl.  Comm.  17;  Tiedeman,  R.  P.  (3d  ed.),  sec.  6. 

Gaunt  further  on,  tells  King  Richard: 
"Gaunt.    .     .     .    Why,  cousin,  wert  thou  regent  of  the  world, 
It  were  a  shame  to  let  this  land  by  lease." 

(King  Richard  II,  Act  II,  Scene  I.) 
In  The  Rape  of  Lucrece,  the  Poet  said: 
"O,  let  it  not  be  hild, 
Poor  women's  faults,  that  they  are  so  fulflll'd 
With  men's  abuses;   those  proud  lords  to  blame 
Make  weak-made  women  tenants  to  their  shame." 

(1257,    1260.) 
•Richard  II,  Act  II,  Scene  I. 


RICHARD  THE  SECOND.  237 

to.  In  the  law  of  real  property  the  possessor  thereof  has  the 
right  to  receive  the  profits,  until  a  better  adverse  title  has 
been  established  to  such  land,  and  this  right  is  the  right 
asserted  by  the  king,  as  an  incident  to  his  possession,  re- 
sulting from  the  confiscation  of  the  property  whereof  his 
uncle  Gaunt,  "did  stand  possess'd."1 

Sec.  198.    Royalties.— 

"York.     .     .     Seek   you   to   seize  and  gripe   into   your 
hands, 
The  royalties  and  rights  of  banish'd  Hereford? 
Is  not  Gaunt  dead?  and  does  not  Hereford  live? 
Was  not  Gaunt  just?  and  is  not  Harry  true? 
Did  not  the  one  deserve  to  have  an  heir?"2 

A  royalty,  in  the  law  of  landlord  and  tenant,  is  a  share 
of  the  product  or  profits  of  land,  as  part  of  the  output  from 
a  mine,3  reserved,  by  way  of  a  rental,  by  the  owner  of 
the  land  for  permitting  another  to  use  and  enjoy  it4 

The  duke  of  York  here  contends  for  the  right  of 
descent,  recognized  by  the  English  law  and  of  the  right 
of  Bolingbroke,  as  the  heir  to  his  deceased  father,  to 
inherit  his  land.  It  is  presented,  that  there  was  no  dis- 
loyalty, or  attainder,  which  would  destroy  the  right  of 
descent,  but  both  the  ancestor  and  the  heir  were  loyal 
subjects,  which  would  give  the  heir  a  right  of  inheritance. 


l2  Bl.  Comm.  116. 

2  King  Richard  II,  Act  II,  Scene  I. 

3  White,   Mines   and   Mining  Remedies,   Chapter   12. 

4  Ante  idem.    Coke,  Litt.  46b;  202a;  Tiedeman,  R.  P.  (3d  ed.), 
Sees.  145,  149. 

Speaking,  to  King  Richard  II,  of  the  object  of  Bolingbroke's 
return,  the  Earl  of  Northumberland,  said: 
"North.    His  coming  hither  hath  no  further  scope, 
Than  for  his  lineal  royalties,  and  to  beg, 
Enfranchisement  immediate  on  his  knees." 

(Act  III  Scene  III.) 


238  THE  LAW  IN  SHAKESPEARE. 

Sec.  199. — Attorneys-General. — 

"York.     ...     If  you  do  wrongfully  seize  Hereford's 
rights, 
Call  in  the  letters-patents  that  he  hath 
By  his  attorneys-general  to  sue 
His  livery,  and  deny  his  offer'd  homage, 
You  pluck  a  thousand  dangers  on  your  head."1 

An  attorney-general  is  one  elected  or  appointed  to  at- 
tend to  all  legal  affairs  of  a  state,  nation  or  kingdom,  with 
general  authority  in  the  premises,  in  all  legal  affairs.2 
The  King,  at  English  law,  is  the  Lord  paramount  in  whom 
abides  the  superior  title  to  land  and  all  citizens  hold  under 
him,  in  legal  contemplation,  in  their  estates,  or  owner- 
ship.3 At  feudal  periods,  when  the  owner  died,  his  adult 
heirs,  had  to  "sue  livery,"  or  claim  a  delivery  to  himself, 
as  heirs  of  the  father,  of  the  land  of  which  the  latter  died 
siezed.4  And  this  is  the  process  that  Shakespeare  refers 
to  in  these  lines,  which  the  duke  of  York  declares  ought 
to  be  recognized,  by  the  King. 

Sec.  200.    Letters-patent. — 

"York.     .     .     If    you    do    wrongfully    seize    Hereford's 
rights, 
Call  in  the  letters  patent  that  he  hath 
By  his  attorney-general  to  sue 
His  livery,  and  deny  his  offer'd  homage, 
You  pluck  a  thousand  dangers  on  your  head.""' 

Letters-patent  are  so  called,  because  they  are  not  sealed 
up,  but  are  granted  open.  They  are  letters  from  the 
Government  or  its  representative,  to  convey  the  right  to 
the  patentee,  as  a  patent  for  a  tract  of  land,  or  to  secure 
him  a  right  that  he  already  possessed,  as  a  patent  for  a 
new  invention  or  discovery.     Letters  patent  are  generally 


1King  Richard  II,  Act  II,  Scene  I. 

2Bouvier's  Law  Dictionary. 

3Tiedeman  R.  P.   (3d.  ed.). 

*Malone,  Rolfe's  Richard  II,  p.  194,  notes. 

■  King  Richard  II,  Act  II,  Scene  I. 


RICHARD  THE  SECOND.  239 

a  matter  of  record  and  hence  can  be  read  by  all  persons, 
thus  furnishing  record  evidence  of  the  right  secured 
thereby.1 

The  good  duke  of  York  here  tells  the  king  that  if  he 
confiscates  the  duke  of  Hereford's  property,  he  must  recall 
the  letters-patent  securing  him  the  land  he  holds  by 
right  of  homage  and  livery  of  seisin  and  thus  do  violence 
to  the  rights  of  citizens  in  the  kingdom. 

Sec.  201.    Seize.— 

"K.  Rich.     Think  what  you  will ;  we  seize  into  our  hands, 
His  plate,  his  goods,  his  money  and  his  lands."2 

To  seize,  in  the  law,  is  the  act  of  taking  possession  of 
the  property  of  a  person,  condemned  by  the  judgment  of 
his  sovereign  or  of  a  competent  tribunal,  to  pay  a  sum  of 
money,  for  which  the  property  is  taken.3  The  act  of 
seizure  may  also  be  made  because  of  the  violation  of  some 
public  law,  by  one  qualified  and  competent  to  make  such 
seizure,  but  the  seizure  of  the  king,  in  this  instance, 
was  contrary  to  law,  as  no  attainder  had  lawfully  been 
adjudged  against  Gaunt,  nor  his  son,  and  the  right  of 
property,  by  virtue  of  the  law,  was  thus  denied  the  right- 
ful owner. 


1  Bouvier's  Law  Dictionary. 

Replying  to  the  request  of  Suffolk  and  Norfolk  to  surrender 
his  great  seal,  Cardinal  Wolsey,  in  King  Henry  VIII,  said:  "Wol. 
That  seal,  you  ask,  with  such  a  violence,  the  king,  (Mine  and  your 
master,)  with  his  own  hand  gave  me:  Bade  me  enjoy  it  with  the 
place  and  honours,  during  my  life;  and,  to  confirm  his  goodness, 
tied  it  by  letters  patent:  Now,  who'll  take  it?"  (Act  III, 
Scene  II.) 

2  King  Richard  II,  Act  II,  Scene  I. 

3  2  Cranch,  87;   Comyns  Dig.  C.  5. 

In  The  Passionate  Pilgrim,  in  narrating  how  Venus  wooed 
Adonis,  it  is  said: 

"  'Even  thus,'  quoth  she,  'he  seized  on  my  lips,' 
And  with  her  lips  on  his  did  act  the  seizure."     (XI,  9,  10.) 


240  THE  LAW  IN  SHAKESPEARE. 

Sec.  202.    Fine.— 

"Ross.     The  commons  hath  he  piled  with  grievous  taxes, 
And  lost  their  hearts;  the  nobles  hath  he  fin'd, 
For  ancient  quarrels  and  quite  lost  their  hearts."1 

In  the  criminal  law,  a  fine  is  any  pecuniary  punishment 
imposed  by  a  lawful  tribunal,  upon  a  person  convicted  of 
some  crime  or  misdemeanor.2  The  kind  of  fine  referred 
to  in  this  verse  is  that  known  at  the  ancient  common  law 
as  a  fine  le  roy,  which  was  a  sum  of  money  that  any  one 
was  compelled  to  pay  the  king  for  any  contempt  or  offense. 
Any  one  committing  a  trespass  or  quarrelling  or  commit- 
ting other  misdemeanor,  could  be  fined  by  the  king  there- 
for, and  the  fine  thus  exacted  was  called  a  fine  le  roy.3 

Sec.  203.    Repeal.— 

"Green.     .     .     .     The  banish'd  Bolingbroke  repeals  him- 
self, 
And  with  uplifted  arms  is  safe  arriv'd 
At  Ravenspurg."4 

A  repeal  is  the  abrogation  or  destruction  of  a  law  or 
decree  by  a  competent  authority.5  When  a  law  is  re- 
pealed it  leaves  all  the  civil  rights  of  the  parties  the  same 

'King  Richard  II,  Act  II,  Scene  I. 

2  Bacon,  Abr.  Pines  and  Amercements;  Sheppard  Touch.  2. 

•  Termes  de  la  Ley ;   Cunningham,  Law  Dictionary. 

Winchester  replied  to  the  Mayor  of  London,  who  was  trying 
to  command  the  peace,  before  the  Tower,  in  1'  Henry  VI,  as 
follows:  "Win.  Here's  Gloster,  too,  a  foe  to  citizens:  One  that 
still  motions  war,  and  never  peace,  O'ercharging  your  free  purses, 
with  large  fines;  That  seeks  to  overthrow  religion."  (Act  I, 
Scene  III.) 

Speaking  of  the  tumult  over  the  birth  of  Queen  Elizabeth,  the 
Lord  Chamberlain,  in  King  Henry  VIII,  said:  "Cham.  As  I  live, 
If  the  king  blame  me  for't,  I'll  lay  ye  all,  by  the  heels,  and 
suddenly;  and  on  your  heads  Clap  round  fines,  for  neglect." 
(Act  V,  Scene  III.) 

4  King  Richard   II,  Act  II,   Scene   II. 
•Bouvier's  Law  Dictionary. 


RICHARD  THE  SECOND.  241 

as  if  no  such  law  or  decree  had  been  in  force,1  hence,  the 
inference  here  is  that  Bolingbroke,  by  force  of  his  own 
will  and  with  strong  arms  had  repealed  the  decree  of 
banishment,  and  set  aside  the  order  for  his  banishment, 
by  virtue  of  a  power  above  that  of  the  king's. 

Sec.  204.    Covenant. — 

"Boling.     .     .     .     My   heart   this   covenant   makes,   my 
hand  thus  seals  it."2 

A  covenant,  in  the  law  of  contracts,  is  an  agreement 
entered  into  by  deed,  or  contract  under  seal,  whereby  the 
promisor  or  covenantor  promises  the  performance  or  non- 
performance of  certain  acts  or  that  a  given  state  of  things 
does  or  does  not  exist,  as  in  the  contract  is  specified.3 

Bolingbroke  here  makes  his  heart  the  party  to  the  cove- 
nant or  promise  and  seals  it,  with  his  hand,  as  all  such 
covenants  were,  by  law,  required  to  be  sealed,  to  give  the 
covenant  validity.4 

Sec.  205.     Breaking  laws. — 

"York.     It  may  be,  I  will  go  with  you: — but  yet,  I'll 
pause, 
For  I  am  loath  to  break  our  country's  laws."5 

This  respect  for  the  law,  shown  by  the  duke  of  York, 
is  worthy  the  emulation  of  the  most  respected  citizens,  for 


1  Bacon,  Abr.   ( Statute,  D. ) 

2  King  Richard  II,  Act  II,   Scene  III. 

3  Bacon,  Abr.  Covenant,  B;  Rawle,  Cov.  364;  4  Kent's  Comm. 
473. 

4  3  Coke,  Inst.  169. 

Warwick  said  to  the  duke  of  York,  in  1'  Henry  VI:  "War.  Be 
patient,  York;  if  we  conclude  a  peace,  It  shall  be  with  such  strict 
and  severe  covenants,  As  little  shall  the  Frenchmen  gain 
thereby."     (Act  V,  Scene  IV.) 

King  Henry  VI,  tells  Suffolk,  in  regard  to  his  marriage  with 
Margaret:  "K.  Hen.  .  .  post,  my  lord,  to  Prance;  Agree  to 
any  covenants."     (Act  V,  Scene  V.) 

5  King  Richard  II,  Act  II,  Scene  III. 


242  THE  LAW  IN  SHAKESPEARE. 

by  strict  adherence  to  law  alone  can  the  mandates  of  the 
law  be  maintained.  In  the  broader  sense,  law  is  the 
aggregate  of  the  rules  of  conduct  to  keep  the  members  of 
society  within  the  proper  limits.1  In  its  analysis,  it  may 
include  adherence  to  rules  for  the  protection  of  the  person 
or  the  property  of  the  member  who  invokes  the  law,  or  it 
may  apply  to  the  class  of  public  wrongs  known  as  crimes ; 
but  in  either  case,  it  is  the  same  law,  requiring  the  same 
obedience  and  this  obedience  to  the  law  which  York  recog- 
nizes as  the  first  duty  of  citizenship,  shows  that  York 
spoke  with  a  deep  knowledge  of  the  underlying  duty  of 
the  citizen. 

Sec.  206.    Livery.— 

"Boling.  ...  I  am  denied  to  sue  my  livery  here, 
And  yet  my  letters-patent  give  me  leave."2 
Livery  as  here  used,  referred  to  the  writ  known  at  the 
common  law,  which  the  heir,  on  arrival  at  his  majority, 
had  the  right  to  sue  out,  to  obtain  the  possession  of  the 
seisin  of  his  lands,  at  the  hands  of  the  king.3  The  king- 
was  regarded  as  the  absolute  owner  of  the  soil  and  the 
rights  of  the  lords  to  hold  the  land  was  mediately  or  imme- 
diately from  the  sovereign,  hence,  when  a  new  tenant  of 
the  freehold,  by  descent,  desired  to  possess  his  land,  he 
had  to  do  so  by  sueing  out  livery.4     Bolingbroke  com- 

»J  Bentham,  402-407. 

The  servant,  in  the  Duke  of  York's  garden,  is  made  to  say: 
"1  Serv.    Why  should  we,  in  the  compass  of  a  pale, 
Keep  law  and  form  and  due  proportion, 
Showing,  as  in  a  model,  our  firm  estate?" 

(King  Richard  II,  Act  III,  Scene  IV.) 
The   Duke   of   Gloster    replied    to    Cardinal    Winchester,    in    V 
Henry  VI,  as  follows:     "Glo.     Cardinal,  I'll  be  no  breaker  of  the 
law:  But  we  shall  meet  and  break  our  minds,  at  large."     (Act  I, 
Scene  III.) 

2  King  Richard  II,  Act  II,   Scene  III. 

3  2  Bl.  Comm.  68. 

4Tiedeman,  R.  P.    (3d  ed.),  Chap.  Ill,  The  Feudal   System. 


RICHARD  THE  SECOND.  243 

plains  that  this  common  law  right  was  denied  him,  in  the 
face  of  his  letters-patent,  which  gave  and  secured  to  him 
this  right. 

Sec.  207.    Attorneys.— 

"Boling.     .     .     .     What  would  you  have  me  do?  I  am 
a  subject, 
And  challenge  law:  Attorneys  are  denied  me; 
And  therefore  personally  I  lay  my  claim 
To  my  inheritance  of  free  descent."1 

Attorneys  are  those  put  in  the  place,  stead  or  turn  of 
another,  to  manage  his  affairs,  or  some  particular  affair, 
by  direction  of  the  principal.2  The  right  of  appearing  by 
attorney  was  a  right  given  all  citizens  at  common  law,  for 
Lord  Coke  says:  "All  persons  who  are  capable  of  acting 
for  themselves  and  even  those  who  are  disqualified  from 
acting  in  their  own  capacity,  if  they  have  sufficient  under- 
standing, as  infants  of  proper  age,  may  act  by  attorneys."3 

Bolingbroke  invokes  the  law  of  descent,  as  recognized  in 
England,  and  being  denied  attorney  to  present  his  cause, 
he  appears  in  person,  as  he  had  a  right  to  do. 

In  1'  Henry   IV    (Act   IV,  Scene   III)    Hotspur  thus   explains 
his  father's  former  friendship  for  the  king: 
"Hotspur.    ...     My  father  gave  him  welcome  to  the  shore; 

And  when  he  heard  him   swear  and  vow  to  God 

He  came  but  to  be  Duke  of  Lancaster, 

To  sue  his  livery  and  to  beg  his  peace, 

With  tears  of  innocency  and  terms  of  zeal, 

My  father,  in  kind  heart  and  pity  mov'd, 

Swore  him  assistance  and  perform'd  it  too." 

aKing  Richard  II,  Act  II,  Scene  III. 

2Spellman,  Gloss;   Bacon,  Abr.  Attorney. 

'Coke,  Litt.  52  a. 

Referring  to  the  wordy  abuse  of  Queen   Margaret,  after  the 
death  of  her  sons,  Queen  Elizabeth  observed,  in  King  Richard  III: 
"Q.  Eliz.    Windy  attorneys  to  their  client  woes, 
Airy  succeeders  of  intestate  joys, 
Poor  breathing  orators  of  miseries."     (Act  IV,  Scene  IV.) 

In  attempting  to  woo  his  own  niece,  through  her  mother, 
Richard    III   said   to   her   mother:     "K.   Rich.    Therefore,    dear 


244  THE  LAW  IN  SHAKESPEARE. 

Sec.  208.     Executors. — 

"K.  Rich.     .     .     .    Let's  talk  of  graves,  of  worms  and 
epitaphs ; 
Make  dust  our  paper,  and  with  rainy  eyes, 
Write  sorrow  on  the  bosom  of  the  earth. 
Lets  choose  executors  and  talk  of  wills ; 
And  yet,  not  so, — for  what  can  we  bequeath, 
Save  our  deposed  bodies  to  the  ground."1 

An  executor  is  one  to  whom  another  commits  by  his  last 
will,  the  execution  of  his  will  and  testament.2  An  execu- 
tor has  authority  over  the  personal  estate  of  the  decedent 
and  it  is  his  duty  to  dispose  of  the  personal  estate  and  pay 
the  legacies  and  bequests  bequeathed  by  the  testator.  If 
there  was  no  property  owned  by  the  testator,  of  course 
there  would  be  no  duty  to  be  performed  by  an  executor, 
hence  the  King  concludes,  as  he  has  nothing  to  bequeath, 
such  an  appointment  is  useless. 


Sec.  209. — Failure  to  speak,  in  criminal  case — Standing 
mute. — 

"Queen.     0,  I  am  pressed  to  death, 
Through  want  of  speaking."3 

This  line  no  doubt  refers  to  the  ancient  practice  at  the 
common  law,  when  a  prisoner  charged  with  treason,  lar- 

mother,    (I  must  call  you  so,)   Be  the  attorney  of  my  love  to 
her."     (Act  IV,  Scene  IV.) 

Stanley  thus  greets  Richmond,  in  King  Richard  III:  "Stan. 
I,  by  attorney,  bless  thee  from  thy  mother,  Who  prays  continually 
for  Richmond's  good."     (Act  V,  Scene  III.) 

1King  Richard  II,  Act  III,  Scene  IV. 

21  Williams,  Exec.  185;   9  Coke  88;   Coke,  2nd  Inst.  236. 

Grandpre,  the  French  lord,  before  the  battle  of  Agincourt,  said 
of  the  English:  "Grand.  .  .  their  executors,  the  knavish 
crows,  fly  o'er  them  all,  impatient  for  their  hour."  (Henry  V, 
Act  IV,  Scene  II.) 

3  King  Richard  II,  Act  III,  Scene  IV. 


RICHARD  THE  SECOND.  245 

ceny,  or  other  felony,  stood  mute  and  refused  to  plead  or 
answer  to  the  charge  and  state  whether  he  was  guilty  or 
not  guilty. 

According  to  the  ancient  books,  he  was  not  taken  as  con- 
fessing to  the  crime,  in  case  the  offense  was  treason,  or 
such  high  felony,  but  by  way  of  punishment  for  his  ob- 
stinacy in  thus  standing  mute,  he  was  confined  to  a  low, 
dark  chamber  in  the  prison  and  with  his  body  naked  and 
outstretched,  a  great  iron  weight  was  placed  upon  him 
and  thus  he  was  so  pressed  without  food,  except  bread 
and  water,  he  either  died,  or  answered  to  the  charge 
against  him.1 

The  effect  of  standing  mute  was  thus  to  press  the  life 
out  of  the  prisoner  by  such  practice  and  hence  the  Queen, 
"Through  want  of  speaking,"  claimed  that  she  was  liter- 
ally "pressed  to  death." 

1Fleta,  lib.  1,  c.  34,  sec.  33;   Brit.  C.  C.  4,  22. 

This  inhuman  practice  was  abolished  by  statute  in  England,  in 
2  Geo.  Ill,  c.  20.  It  seems  strange  that  with  advancing  civiliza- 
tion, such  terrible  things  were  countenanced  by  the  law  until 
such  modern  times. 

Pandarus,  refers  to  this  barbarous  custom  of  the  English 
courts,  in  advising  Troilus  and  Cressida  to  press  the  bed  to  death, 
because  it  "stands  mute,"  as  to  their  "pretty  encounters,"  thereon, 
in  Troilus  and  Cressida,  as  follows:  "Pan.  .  .  I  will  show 
you  a  chamber  and  a  bed,  which  bed,  because  it  shall  not  speak 
of  your  pretty  encounters,  press  it  to  death:  away."  (Act  III, 
Scene  II.) 

On  arraignment  of  a  prisoner,  under  the  old  English  Common 
Law,  he  was  enjoined  to  hold  up  his  right  hand,  by  which  act 
he  admitted  that  he  was  the  person  named  in  the  indictment. 
The  Clerk  then  asked  him:  "Are  you  guilty  or  not  guilty?"  If 
he  answered  "Not  guilty"  he  was  then  asked:  "Culprit,  how  will 
you  be  tried,"  and  the  prisoner  replied:  "By  God  and  my  country," 
when  the  Clerk  retorted,  "God  send  you  a  good  deliverance,"  and 
the  trial  then  proceeded. 

If  the  accused  refused  to  or  did  not  speak  at  all,  he  was  said 
to  "stand  mute,"  and  in  treason  or  a  misdemeanor,  his  silence 
was  a  confession  of  guilt,  but  if  the  offense  was  a  felony,  the 
Court  determined,  officially,  if  the  standing  mute  was  "of  malice," 


246  THE  LAW  IN  SHAKESPEARE. 

Sec.  210.    Signories.— 

"Boling.     These  differences  shall  all  rest  under  gage, 
Till  Norfolk  be  repealed:  repealed  he  shall  be, 
And,  though  mine  enemy,  restored  again 
To  all  his  land  and  signories;  when  he's  return'd 
Against  Aumerle  we  will  enforce  his  trial."1 

Signories  is  here  used  in  the  sense  of  the  land  or  terri- 
tory over  which  the  lord  holds  jurisdiction,  by  virtue  of 
his  recognition  as  the  owner  of  such  land,  by  his  sover- 


or  by  "visitation  of  God,"  and,  if  the  latter,  the  trial  proceeded; 
but,  if  the  former,  the  culprit  was  pressed  to  death,  by  a  heavy 
weight,  if  he  or  she  continued  to  stand  mute. 

Many  cases  are  reported  where  this  barbarous  treatment  was 
accorded  defendants  who  refused  to  plead.  Margaret  Clitherow, 
a  married  woman,  under  a  felony  charge,  who  refused  to  plead, 
was  pressed  to  death,  at  York,  on  Lady  Day,  March  25th,  1586, 
She  was  given  different  opportunities  to  plead  but  persisting  in 
her  stubbornness,  was  disrobed  and  placed  on  her  back  and  a 
heavy  door  was  placed  upon  her,  with  weights,  which  broke  her 
ribs  and  mashed  her  to  death. 

Major  Strangeways  arraigned,  in  1658,  for  the  murder  of  his 
brother-in-law,  refused  to  plead,  to  avoid  forfeiture  of  his  estate 
on  his  conviction.  The  weight  was  placed  upon  him  angle-wise 
and  not  being  sufficient  to  kill  him  outright,  the  bystanders  added 
their  weight  and   ehded   his  misery. 

In  1726,  a  man  named  Burnworth,  refused  to  plead  to  the 
charge  of  murder,  but  after  being  press'd  for  an  hour  or  so,  with 
four  hundred  weight  of  iron,  he  recanted  and  entered  his  plea 
and  was  convicted  and  hanged.  This  practice  was  called  peine 
forte  et  dure.  The  punishment  was  established  during  the  reign 
of  Henry  IV,  in  the  15th  century  and  continued  until  1772,  when 
by  statute,  (12  Geo.  Ill,  c.  20.)  standing  mute  in  felony  was  made 
equivalent  to  a  conviction.  But  in  1827,  by  statute,  (7  and  8 
Geo.  IV,  c.  28)  a  plea  of  not  guilty  was  entered  for  one  standing 
mute,  for  any  cause,  and  this  more  humane  practice  continues  to 
the  present  day. 

(See  article  by  Francis  Watt,  The  Law's  Lumber  Room,  pub- 
lished by  John  Lane,  London,  also  in  14  Law  Notes,  pp.  31,  33, 
for  May  10th,  1910.) 

"King  Richard  II,  Act  IV,  Scene  I. 


RICHARD  THE  SECOND.  247 

eign.1     It  is  essentially  a  right  or  thing  claimed  or  taken 
by  virtue  of  a  sovereign  prerogative. 

Bolingbroke  declares  that  he  will  so  far  forgive  his 
enemy  Norfolk  as  to  recognize  his  landed  rights  by  the 
repeal  of  the  decree  for  his  banishment  and  to  let  his 
titles  rest  undisputed,  until  his  trial,  by  battle,  against 
Aumerle,  after  his  return. 

Sec.  211.    Under  gage. — 

"Boling.     .     .     .     Lords     appellants,     your     differences 
shall  all  rest  under  gage, 
Till  we  assign  you  to  your  days  of  trial."2 

A  gage  is  something  given  as  a  security  or  by  way  of 
pledge  for  the  performance  of  a  given  act  by  the  person 
entering  into  the  gage,  which  is  forfeited  for  failure  to 
perform,  as  per  agreement.3  In  other  words,  the  king- 
here  declares  that  until  the  day  of  trial,  each  shall  be 
under  surety  for  his  appearance  at  the  trial  by  battle  and 
until  that  time  the  rights  of  all  parties  shall  stand  in 
statu  quo. 

Sec.  212.    Day  of  trial.— 

"North.     Well  have  you  argu'd  sir;  and,  for  your  pains, 
Of  capital  treason  we  arrest  you  here: — 
My  lord  of  Westminster,  be  it  your  charge 
To  keep  him  safely  till  his  day  of  trial."4 

A  trial  is  the  examination,  before  a  competent  tribunal, 
according  to  law,  of  the  facts  put  in  issue  in  a  cause,  for 


1  2  Bl.  Comm.  438. 

Westmoreland  replies  to  Lord  Mowbray,  in  2'  Henry  IV,  as  fol- 
lows: "West.  .  .  .  Were  you  not  restor'd  to  all  the  duke  of 
Norfolk's  signories,  your  noble  and  right  well  remember'd  fa- 
ther?"    (Act  IV,  Scene  I.) 

2  King  Richard  II,  Act  IV,  Scene  I. 

3  Granville,  lib.  10,  c.  6. 

4  King  Richard  II,  Act  IV,  Scene  I. 


248  THE  LAW  IN  SHAKESPEARE. 

the  purpose  of  determining  such  issue  or  issues.1  As  a 
trial  is  usually  had  by  witnesses  and  this  necessitates  time 
to  get  the  evidence  at  hand,  a  "day  of  trial"  is  usually  set 
and  upon  that  day  the  issues  are  decided  upon  the  evi- 
dence submitted.2 

Sec.  213.    Answer. — 

"Boling.     Lords,  you  that  are  here  under  our  arrest, 
Procure  your  sureties  for  your  days  of  answer."3 

An  answer  is  a  defense  in  writing  made  by  a  defendant 
to  the  charge  contained  in  a  bill,  or  information  filed 
against  him,  in  a  suit  pending  in  court.4  An  answer  is 
generally  required  to  meet  the  charges  of  the  bill  or 
information  filed  and  to  contain  matters  of  fact,  not  argu- 
ments or  irrelevant  matter,  without  repetition  or  undue 
prolixity.  The  lords  here  arrested  were  required  to  fur- 
nish sureties  for  their  appearance  at  the  day  of  trial, 
which  is  referred  to  as  the  day  of  answer. 

Sec.  214.    Crimes. — 

"North.     No  more,  but  that  you  read, 

These  accusations  and  these  grievous  crimes, 
Committed  by  your  person  and  your  followers, 
Against  the  state  and  profit  of  this  land; 
That,  by  confessing  them,  the  souls  of  men 
May  deem  that  you  are  worthily  deposed."5 

A  crime  is  a  wrongful  act  which  the  Government 
notices  and  punishes  because  it  is  injurious  to  the  public.8 

*9  Coke,  30;  3  Bl.  Comm.  331;  3  Bl.  Comm.  333. 

2  Originally  a  trial  at  nisi  prius — where  issues  of  fact  were  de- 
termined— was  before  a  justice  in  eyre,  but  afterwards,  by  statute 
of  Westminster,  (13  Edw.  I,  c.  30)  the  trial  was  had  before  a 
justice  of  assize.     (3  Sharsh.  Bl.  Comm.  353.) 

3  King  Richard  II,  Act  IV,  Scene  I. 
*2  Brown,  Civ.  Law,  371n. 

5  King  Richard  II,  Act  IV,  Scene  I. 
«1  Bishop,  Cr.  Law,  Sec.  43. 


RICHARD  THE  SECOND.  249 

The  word  crime,  as  distinguished  from  a  misdemeanor, 
generally  denotes  an  offense  of  a  deep  and  atrocious  char- 
acter, when  compared  with  those  of  lesser  degree,  com- 
monly called  misdemeanors.1 

It  was  the  deepest  despair  to  compel  the  wronged  king, 
after  his  subjection,  to  publicly  proclaim  himself  a  crim- 
inal and  to  renounce  his  kingdom,  for  the  reason  that  it 
was  essential  for  him  to  do  so  to  convince  the  populace 
that  his  abdication  was  proper,  but  such  was  the  punish- 
ment inflicted  for  his  irregularities,  which  are  here  de- 
nominated crimes  against  the  law. 

Sec.  215.    Manors. — 

"K.  Rich.  .  .  .  My  manors,  rents,  revenues,  I  forego ; 
My  acts,  decrees  and  statutes,  I  deny."2 
A  manor,  derived  from  the  French  manoir,  signifies  a 
house,  residence  or  habitation.  At  the  common  law,  the 
meaning  of  the  term  had  a  broader  signification  and  in- 
cluded not  alone  the  house,  or  dwelling  but  the  land  sur- 
rounding it,  as  well,  which  was  held  through  or  by  the 
king,  or  other  person  of  rank.3 


i  4  Bl.  Comm.  4. 

Gloster  is  made  to  say  to  the  Bishop  of  Winchester,  in  1' 
Henry  VI: 

"Glo.  The  manner  of  thy  vile  outrageous  crimes, 
That  therefore  I  have  forg'd,  or  am  not  able 
Verbatim  to  rehearse  the  method  of  my  pen." 

(Act  III,  Scene  I.) 
Lucrece  complains  at  the  night  of  her  great  wrong: 
"'0  hateful,   vaporous  and   foggy  night: 
Since  thou  art  guilty  of  my  cureless  crime, 
Muster  thy  mists  to  meet  the  eastern  light, 
Make  war  against  proportion'd  course  of  time."     (771,  774.) 

2  King  Richard  II,  Act  IV,  Scene  I. 

3  Coke,  Litt.  58,  108;   2  Rolle,  Abr.  121. 

No  new  manors  were  created  in  England  after  the  enactment 
of  the  statute  Quia  Emptores,  forbidding  subinfeudation,  in  the 
year  1290.     Tiedeman,  on  R.  P.  (3d  ed.),  Sees.  22-31. 


250  THE  LAW  IN  SHAKESPEARE. 

The  king  here,  in  his  abdication  foregoes  his  manors, 
rents  and  revenues  and  also  in  his  dejection  denies  his 
acts,  decrees  and  statutes. 


Sec.  216.    Conspiracy. — 

"York.     Thou  fond,  mad  woman, 

Wilt  thou  conceal  this  dark  conspiracy?"1 

A  conspiracy  is  a  combination  of  two  or  more  persons 
to  accomplish  by  some  concerted  action,  some  criminal 
purpose,  or  to  accomplish  some  purpose,  not  in  itself  crim- 
inal, by  some  criminal  or  unlawful  means.2  A  treason- 
able design  to  overthrow  the  king  and  re-instate  another 
in  his  place,  entered  into  by  several  people,  would  come 
within  the  legal  definition  of  the  term,  and  this  is  why  the 
duke  of  York  is  struck  with  the  mad  act  of  his  wife,  in 
her  attempt  to  concel  such  a  dark  crime. 

Speaking  of  the  expense  incurred  in  the  pageant,  by  which 
the  French  treaty  was  ratified,  Buckingham,  in  King  Henry 
VIII,  said:  "Buck.  O  many  have  broke  their  backs  with  laying 
manors  on  them  for  this  great  journey."     (Act  I,  Scene  I.) 

JKing  Richard  II,  Act  V,  Scene  II. 
3  2  Bishop,  Cr.  Law,  Sees.  149-202. 

Speaking  of  the  treason  of  the  earl  of  Cambridge,  Henry  V, 
said:  "K.  Hen.  .  .  and  this  man,  hath  for  a  few  light  crowns, 
lightly  conspir'd,  and  sworn  unto  the  practices  of  France,  to  kill 
us  here  in  Hampton."     (Act  II,  Scene  II.) 

In  1'  Henry  VI,  the  duke  of  Gloster  said  to  Winchester,  before 
the  Tower: 
"Glo.    Stand  back,  thou  manifest  conspirator, 

Thou  that  contriv'dst  to  murder  our  dead  lord." 

(Act    I,    Scene    III.) 
York  thus  addresses  Henry  VI,  in  3'  Henry  VI:     "York.   Henry 
of  Lancaster,  resign  thy  crown:— What  mutter  you,  or  what  con- 
spire you,  lords?"     (Act  I,  Scene  I.) 

On  the  entering  of  the  conspirators,  in  Julius  Casar,  Brutus 
said : 


RICHARD  THE  SECOND.  251 

'Bru.    O  conspiracy: 

Sham'st  thou  to  show  thy  dangerous  brow  by  night, 

When  evils  are  most  free?    O,  then,  by  day, 

Where  wilt  thou  find  a  cavern  dark  enough 

To  mark  thy  monstrous  visage?     Seek  none,  conspiracy; 

Hide  it  in  smiles,  and  affibility; 

For  if  thou  path  thy  native  semblance  on, 

Not  Erebus  itself  were  dim  enough 

To  hide  thee  from  prevention."  (Act  II,  Scene  I.) 

Octavius  Caesar  tells  Cassius,  before  the  battle  of  Philippi: 
'Oct.    I  draw  a  sword  against  conspirators; 

When  think  you  that  the  sword  goes  up  again? — 
Never,  till  Caesar's  three  and  twenty  wounds,  be  well  aveng'd." 

(Act  V,  Scene  I.) 


CHAPTER  XVIII. 

"FIRST  PART  OF  KING  HENRY  THE  FOURTH." 

Sec.  217.  King's  right  to  prisoners,  under  military  Law. 

218.  "The  Law's  Delay." 

219.  "Peaching"   on  accomplice. 

220.  Righting  Grand-jurors. 

221.  Audi  alteram  partem. 

222.  Term  of  apprentice. 

223.  Arrest  upon  "hue  and  cry." 

224.  Robbery. 

225.  Tripartite  agreements. 

226.  Enfeoffment. 

227.  Alien. 

228.  Factor— Broker. 

229.  Maiming. 

230.  Reprisal. 

231.  Counterfeit. 

232.  Death  by  Judicial  Sentence. 

Sec.  217.    King's  right  to  prisoners,  under  military  law. — 

"King.     .     .     .     What  think  you  coz, 

Of  this  young  Percy's  pride?  the  prisoners 
Which  he  in  this  adventure  hath  surpris'd 
To  his  own  use  he  keeps,  and  sends  me  word 
I  shall  have  none  but  Mordake    earl  of  Fife."1 

This  has  reference  to  the  right  of  the  King,  by  virtue  of 
his  prerogative,  to  the  prisoners  taken  in  battle  by  his 
forces.  "According  to  Toilet,  Hotspur  had  a  right  to  all 
the  prisoners,  except  the  earl  of  Fife.  By  the  law  of  arms, 
a  man  who  had  taken  any  captive,  whose  ransom  did  not 
exceed  ten  thousand  crowns,  had  the  control  of  him.  The 
earl  of  Fife,  being  a  prince  of  the  blood  royal,  (the  Duke 
of  Albany,  his  father,  was  brother  to  King  Robert  III) 
could  be  claimed  by  Henry,  by  his  acknowledged  military 
prerogative."2 

1  V  Henry  IV,  Act  I,   Scene   I. 

'Rolfe's  First  part  of  King  Henry  IV,  p.  164,  notes. 

(252) 


FIRST  HENRY  THE  FOURTH.  253 

Sec.  218.    "  The  law 's  delay. '  '— 

"Fal.  Well,  Hal,  well;  and  in  some  sort  it  jumps  with 
my  humour,  as  well  as  waiting  in  the  court,  I  can 
tell  you. 

P.  Hen.     For  obtaining  of  suits? 

Fal.  Yea,  for  obtaining  of  suits:  whereof  the  hangman 
hath  no  lean  wardrobe."1 

In  the  present  day,  when  people  are  so  much  concerned 
about  the  "law's  delay,"2  it  is  interesting  in  the  extreme 
to  see  that  Shakespeare  also  noted  this  defect  in  the 
judicial  system  of  England,  in  his  day.  Then,  as  now, 
to  command  the  respect  of  the  people  it  was  true  that 
the  law  should  be  not  only  impartially  and  honestly  en- 
forced, but  that  justice  should  be  likewise  speedy  in  its 
results.  Respect  for  the  law  and  a  complete  reliance 
thereon,  for  the  protection  of  the  personal  and  property 
rights  of  the  citizen  is  essential  in  every  government  and 
the  power  and  majesty  of  the  law  should  be  instilled  into 
the  minds  of  the  youth  of  all  civilized  states,  as  a  cardinal 
principal  of  government.  But  while  this  is  indisputable, 
it  is  none  the  less  true  that  to  commend  itself  to  the  peo- 
ple, not  only  the  law,  but  its  administration  must  be 
enforced  in  a  manner  to  commend  it  to  the  people  and 
unless  this  is  done,  there  is  grave  danger  of  a  widespread 
distrust  of  the  remedies  provided  for  the  enforcement  of 
the  rights  of  citizens.  As  a  usual  thing  there  is  no  dis- 
cussion or  agitation  without  a  just  cause,  and  the  present 
and  long  continued  discussion  of  the  subject  of  the  "law's 
delay"  would  seem  to  merit  due  attention  by  the  framers 
of  constitutions  and  the  architects  of  the  judicial  depart- 
ments of  States,  lest  the  dangers  from  such  continued  agita- 
tion bring  about  worse  results  than  an  amendment  of  the 
remedial  procedure,  used  to  enforce  the  laws,  will  justify. 

1 1*  Henry  IV,  Act  I,  Scene  II. 

2  See  Article  "The  Law's  Delay,"  by  Hon.  Frank  B.  Kellogg,  pub- 
lished in  "Comment,"  a  legal  publication,  p.  126,  for  October,  1909. 


254  THE  LAW  IN  SHAKESPEARE. 

Sec.  219.    "Peaching"  on  accomplices. — 

"Fal     Go,  hang  thyself  in  thy  own  heir-apparent  gar- 
ters: If  I  be  ta'en  I'll  peach  for  this."1 

In  Hamlet,  also,  Shakespeare  names  the  "Law's  delay"  as  one 
of  the  ills  of  life  rather  to  be  borne  "than  fly  to  others  we  know 
not  of." 

"Hamlet.    For  who  would  bear  the  whips  and  scorns  of  time, 
The  pangs  of  dispriz'd  love,  the  law's  delay, 
When  he  himself  might  his  quietus  make,     .     .     . 
But  that  the  dread  of  something  after  death, 
The  undiscovered  country  from  whose  bourn 
No  traveller  returns,  puzzles  the  will, 
And  makes  us  rather  bear  those  ills  we  have 
Than  fly  to  others  that  we  know  not  of." 

(Hamlet,  Act  III,  Scene  I.) 
Thus,  the  "law's  delay"  was  one  of  the  social  evils  recognized 
in  the  time  of  Shakespeare. 

King  Henry  thus  tells  Exeter,  in  3'  Henry  VI:  "K.  Hen.  I 
have  not  stopp'd  mine  ears  to  their  demands,  Nor  posted  off  their 
suits  with  slow   delays."     (Act  IV,   Scene  VIII.) 

Complaining  of  the  delay  in  securing  his  divorce,  from  Kath- 
erine,  King  Henry  VIII,  said:  "K.  Hen.  These  cardinals  trifle 
with  me:  I  abhor  the  dilatory  sloth,  and  tricks  of  Rome."  (Act 
II,  Scene  IV.) 

Cardinal  Campeius,  in  King  Henry  VIII,  urged  speedy  trial 
and  argument  of  the  divorce  suit,  between  Henry  and  Catherine, 
as  follows:  "Cam.  And  that,  without  delay,  their  arguments, 
Be  now  produc'd  and  heard."     (Act  II,  Scene   IV.) 

Speaking  of  the  delayed  justice  of  the  Gods,  in  Antony  and 
Cleopatra,  Menecrates  is  made  to  say,  to  Pompey: 
"Mene.     Know,  worthy  Pompey, 

That  what  they  do  delay,  they  not  deny. 
Pom.    Whiles*  we  are  suitors  to  their  throne,  decays 

The  thing  we  sue  for."  (Act  II,  Scene  I.) 

In  King  Lear,  Albany  speaks  of  the  "nether  crimes,"  that  can 
"so  speedily"  be  venged.     (Act  IV,  Scene  II.) 

The  King,  in  Hamlet,  speaks  of  the  law's  delays  as  follows: 
"We  should  do  when  we  would;  for  this  would  changes, 
And  hath  abatements  and  delays  as  many, 
As  there  are  tongues,  are  hands  are  accidents." 

(Act  IV,  Scene  VII.) 
*1'  Henry  IV,  Act  II,  Scene  II. 


FIRST  HENRY  THE  FOURTH.  255 

'Teaching"  is  the  common  term  applied,  at  criminal 
law,  to  the  act  of  turning  informer  against  one's  accom- 
plices, or  co-conspirators,  in  the  commission  of  a  crime,  to 
free  the  one  giving  the  evidence  from  the  punishment  for 
the  crime  committed.1  The  same  act  is  ofttimes  spoken  of 
as  "turning  state's  evidence,"  whereby  is  meant  that  the 
criminal  who  divulges  the  evidence  to  the  State,  does  so, 
in  consideration  of  his  acquittal,  thus  enabling  the  State 
to  convict  his  accomplices,  or  associates  in  crime. 

Sec.  220.    Righting  grandjurors. — 

"Fal.  Hang  ye,  gorbellied  knaves,  are  ye  undone? 
No,  ye  fat  chuffs;  I  would  your  store  were  here: 
On,  bacons,  on:  What,  ye  knaves:  young  men  must 
live.  You  are  grandjurors,  are  ye?  we'll  jure  ye, 
i'faith."2 

A  grand  juror,  in  the  time  of  Elizabeth,  had  to  be  pos- 
sessed of  a  freehold  estate,  of  the  yearly  value  of  four 
pounds3  and  Falstaff's  calling  the  travelers  by  this  name 
is  a  recognition  that  he  considered  them  men  qualified  to 
sit  upon  the  grand- jury  and  indict  him  and  his  associates 
for  the  offense  they  were  committing.4  Jurors  are  those 
citizens  selected  to  enforce  the  "rights"  of  litigants  in 
courts,  and  grand-jurors  are  those  men  selected  by  the 
English  courts,  to  take  cognizance  of  the  higher  crimes 
and  prefer  indictments  charging  the  offenders  therewith 
in  open  court.5  "Jure"  is  the  Latin  word  for  "right," 
and  Falstaff's  play  upon  the  word,  meaning  that  he'd 

aThe  above  line  is  the  illustration,  used  by  Mr.  Webster,  by 
way  of  illustration  of  the  meaning  of  the  term  defined  in  his 
dictionary. 

21'  Henry  IV,  Act  II,  Scene  II. 

3V  Reeve's  History  Eng.  Law. 

4  Doctor  Rolfe  thinks  he  intentionally  misunderstood  the  trav- 
elers when  they  said  "we  are  undone,  we  and  ours  forever,"  but 
this  is  not  apparently  borne  out  by  the  language  or  context  of 
the  reply  by  Falstaff.     (Rolfe's  1'  part  of  King  Henry  IV,  p.  191.) 

'Thompson,  Trials. 


256  THE  LAW  IN  SHAKESPEARE. 

"right"  the  travelers,  by  robbing  them,  is  a  declaration 
that  their  functions  as  such  court  officers,  could  not  be 
performed  around  him. 

Sec.  221.    Audi  alteram  partem. — 

"P.  Hen.     Mark  now,  how  plain  a  tale  shall  put  you 
down."1 

To  those  accustomed  by  experience  and  discipline  to  a 
patient  examination  of  both  sides  of  a  controversy,  before 
reaching  a  conclusion,  the  above  line,  suggests  the  maxim 
— audi  alteram  partem — hear  the  other  side,  for  the  story 
of  the  robbery,  as  detailed  by  Falstaff,  had  two  sides,  and 
the  version  as  given  by  Sir  John  could  not  stand  along- 
side that  of  the  Prince. 

This  line  suggests  the  natural  bent  of  the  lawyer's  mind, 
for,  as  observed  by  Ram,  on  Facts:  "A  tendency  to  sus- 
pend his  judgment  on  hearing  one  side  only  of  a  case, 
can  scarcely  fail  to  be  the  result  of  an  advocate's  practice. 
On  any  question,  in  any  transaction  of  life,  in  which  there 
may  be  opposite  sides  taken,  he,  having  heard  one  side 
only,  is  sure  to  enquire  what  can  be  said  on  the  other;  it 
instantly  occurs  to  him  to  say  audi  alteram  partem."2 

Sec.  222.    Term  of  apprentice. — 

"P.  Hen.     How  long  hast  thou  to  serve  Francis? 
Fran.     Forsooth,  five  year,  and  as  much  as  to 


P.  Hen.  Five  years :  by'r  lady,  a  long  lease  for  the  clink- 
ing of  pewter.  But,  Francis,  darest  thou  be  so 
valiant  as  to  play  the  coward  with  thy  indenture,  and 
to  show  it  a  fair  pair  of  heels,  and  run  from  it?"3 

That  the  above  colloquy  has  reference  to  the  common 
law  contract  of  apprenticeship,  there  can  be  no  doubt.    By 

1  V  Henry  IV,  Act  II,  Scene  IV. 

2  Ram,  on  Facts,    (Am.  Ed.)   p.  270. 
"I*  Henry  IV,  Act  II,  Scene  IV. 


FIRST  HENRY  THE  FOURTH.  257 

such  a  contract  the  person  bound  himself  in  due  form 
of  law  to  a  master  to  learn  from  him  his  art,  trade  or  busi- 
ness, and  to  serve  him  during  the  time  of  his  apprentice- 
ship.1 At  the  common  law,  because  the  contract  was 
deemed  for  the  benefit  of  the  infant,  even  an  infant,  who 
was  otherwise  held  incompetent  to  make  a  valid  or  bind- 
ing contract,  was  held  bound  by  his  contract  of  apprentice- 
ship.2 The  apprentice  was  bound  at  law,  to  obey  the 
master,  during  his  service  and  could  not  legally  leave 
his  service  during  the  term  for  which  he  was  appren- 
ticed.3 

Such  contracts  were  generally  in  the  form  of  an  in- 
denture, and  the  Prince  in  urging  Francis  to  "play  the 
coward  with  thy  indenture,"  was  an  attempt  to  get  him 
to  violate  the  law  and  leave  during  his  term  of  service 
as  an  apprentice. 

1  Bacon,  Abr.,  Master  and  Servant;   2  Kent's  Comm.  261-266. 

2  Coke,  2'  Inst.,  214;  1  Bl.  Comm.  426. 

3  6  Johns    (N.  Y.)    274. 

Both  in  England  and  in  the  United  States,  at  the  present  day, 
on  account  of  the  abuse  resulting  from  such  contracts,  they  are 
not  generally  upheld,  without  the  ratification  or  consent  of  the 
parent  or  guardian  of  the  infant  apprentice. 

Speaking  of  the  descent  from  a  Prince  to  an  Apprentice, 
Prince  Henry,  in  2'  Henry  IV  (Act  II,  Scene  II)  observed: 
"P.  Hen.  From  a  god  to  a  bull?  a  heavy  descension:  it  was 
Jove's  case.  From  a  prince  to  a  'prentice?  a  low  transforma- 
tion— that  shall  be  mine." 

Replying  to  the  accusation  of  his  apprentice,  Horner  said,  in 
2'  Henry  VI:  "Hor.  .  .  My  accuser  is  my  'prentice;  and  when 
I  did  correct  him  for  his  fault  the  other  day,  he  did  vow  upon  his 
knees  he  would  be  even  with  me."     (Act  I,  Scene  III.) 

The  Prince  may  have  referred  to  the  statute,  23  Edw.  Ill,  c.  2, 
making  it  a  crime  for  any  apprentice,  workman  or  servant,  to 
depart  from  his  service  before  the  time  agreed  upon.  (Ill  Reeve's 
History  Eng.  Law,  p.  129.) 


258  THE  LAW  IN  SHAKESPEARE. 

Sec.  223.    Arrest  upon  "hue  and  cry." — 

"Sher.     First,  pardon  me,  my  lord.     A  hue  and  cry  hath 
followed  certain  men  unto  this  house."1 

A  "hue  and  cry"  was  the  pursuit  of  one  who  had  com- 
mitted felony,  by  the  highway  and  the  right  of  private 
citizens  to  arrest  the  felon,  on  "hue  and  cry"  was  estab- 
lished at  common  law.2  A  person  engaged  in  the  "hue 
and  cry"  apprehending  the  felon,  on  his  conviction,  was 
entitled  to  forty  pounds,  on  certificate  of  the  judge  or 
justice  where  the  trial  was  had,  as  well  as  to  the  goods, 
horse,  or  money,  taken  with  the  felon,  subject  to  the 
rights  of  other  persons  in  the  property  claimed.3 

The  offense  committed  here,  i.  e.,  that  of  robbery,  was 
the  first  offense  mentioned  in  the  statute  wherein  arresi 
upon  "hue  and  cry"  was  authorized.4 

Sec.  224.    Robbery.— 

"Sher.     I  will,  my  lord:  There  are  two  gentlemen  have 
in  this  robbery  lost  three  hundred  marks. 

1  r  Henry  IV,  Act  II,  Scene  IV. 

2  2  Hale,  100. 

3  Wood,  Inst.,  370-373. 

4  There  is  mention  of  the  "hue  and  cry"  as  early  as  the  reign  of 
Edward  I  and  by  the  statute  of  Winchester  (13  Edw.  I)  it  was 
provided  that:  "Immediately  upon  robberies  and  felonies  com- 
mitted, fresh  suit  shall  be  made,  from  town  to  town,  and  county 
to  county,  by  horsemen  and  footmen,  to  the  seaside.  The  con- 
stable is  to  call  upon  the  parishioners  to  assist  him  in  his  pre- 
cinct and  to  give  notice  to  the  next  constable,  who  is  to  do  the 
same  as  the  first,  etc.,  and  if  the  counties  will  not  answer  the 
bodies  of  the  offenders,  the  whole  hundred  shall  be  answerable 
for  the  robberies  there  committed." 

The  former  statutes  as  to  "hue  and  cry,"  because  of  the  abuse 
and  hardships  resulting  from  the  enforcement  of  the  penalty 
against  the  hundred  made  liable  for  the  failure  to  arrest  the 
felon,  were  amended  during  the  reign  of  Elizabeth,  by  27  Eliz- 
abeth, c.  13,  so  as  to  make  the  inhabitants  of  the  hundred  where 
there  was  any  negligence,  in  making  the  arrest,  liable  for  a 
moiety  of  the  damages,  to  be  recovered  by  the  clerk  of  the  peace. 
(V  Reeve's  Hist.  Eng.  Law,  pp.  355-361.) 


FIRST  HENRY  THE  FOURTH.  259 

P.  Hen.     It  may  be  so;  if  he  have  robbed  these  men, 
He  shall  be  answerable;  and  so,  farewell."1 

Robbery  is  the  felonious  and  forcibly  taking  from  the 
person  of  another,  of  any  goods,  or  money,  either  by  vio- 
lence or  putting  him  in  fear  of  violence.2  At  the  com- 
mon law,  robbery  was  therefore,  the  larceny  from  the  per- 
son, accomplished  by  putting  the  person  robbed  in  fear 
of  violence.3  Falstaff  and  his  companions  had  commit- 
ted robbery  upon  the  persons  of  the  travelers  in  unlaw- 
fully taking  from  their  persons  the  three  hundred  marks, 
mentioned  by  the  Sheriff  and  under  the  law  they  were 
subject  to  indictment  therefor. 

Sec.  225.    Tripartite  agreements. — 

"Mort.     .     .     .     And  our  indentures  tripartite  are  drawn : 
Which  being  sealed  interchangeably, 
(A  business  that  this  night  may  execute)  etc."4 

A  tripartite  agreement  or  contract  is  one  consisting  of 
three  parts,  intended  for  as  many  persons,  as  where  three 
persons  execute  the  contract  and  each  takes  a  copy,  which 

1  V  Henry  IV,  Act  II,  Scene  IV. 

2  4  Bl.  Comm.  243. 

3  Sherwood  Cr.  Law,  200. 

In  2'  Henry  IV,  the  Chief  Justice  is  enquiring  about  Falstaff, 
and  his  connection  with  the  robbery  on  Gadshill,  as  follows: 
uCh.  Jus.    He  that  was  in  question  for  the  robbery? 
Atten.    He,  my  lord;   but  he  hath  since  done  good  service  at 
Shrewsbury,"  etc.     (Act  I,  Scene  III.) 

In  the  XXXVI'  Sonnet,  after  confessing  that  the  plea  of  sen- 
suality is  properly  urged  against  himself,  the  Poet  said: 
"That  I  an  accessary  needs  must  be 

To  that  sweet  thief  which  sourly  robs  from  me."     (13,  14.) 
The  Poet  forgives  the  "gentle  thief"  who  steals  his  strength 
through  sensuality,  in  the  XL'  Sonnet,  in  these  lines: 
"I  do  forgive  thy  robbery,  gentle  thief, 
Although  thou  steal  thee  all  my  poverty."     (9,  10.) 

41'   Henry   IV,  Act  III,   Scene   I. 


tt 


260  THE  LAW  IN  SHAKESPEARE. 

is  made  and  marked  as  the  original.1  The  term  also 
applies  to  a  deed  or  indenture,  as  here  used  and  as  such 
an  instrument  had  to  be  sealed,  it  was  speaking  in  strict 
legal  parlance  to  refer  to  the  execution  of  such  indenture 
as  "being  sealed  interchangeably." 

Sec.  226.     Enfeoffment. — 

K .  Hen.     .     .     .     The  skipping  king,  he  ambled  up  and 
down, 
With  shallow  jesters  and  rash  bavin  wits, 


Grew  a  companion  to  the  common  streets, 
Enfeoff 'd  himself  to  popularity."2 

A  "feoffment"  or  "enfeoffment,"  at  common  law,  was 
a  gift  of  any  corporeal  hereditament  to  another  and  it- 
operated  by  transmutation  of  possession,  it  being  essential 
that  the  seisin  be  passed.  In  other  words,  it  was  the 
instrument  or  deed  of  conveyance,  by  which  the  heredita- 
ment passed,  either  by  investiture  or  by  livery  of  seisin.3 

This  was  one  of  the  earliest  modes  of  conveyance  used  at 
common  law  and  while  it  signified  originally  the  grant 
of  a  feud  or  fee,  it  later  came  to  signify  the  grant  of  an 
inheritance  in  fee,  the  character  of  the  conveyance  being 
devoted  rather  to  the  perpetuity  of  the  estate  granted 
than  to  the  feudal  tenure.4  The  King  here  intimates  that 
King  Richard  had  devoted  himself  to  making  himself 
popular,  without  reservation  of  the  principles  of  man- 
hood, or  anything  else.  In  the  Poet's  words  he  had 
literally,  "EnfefFd  himself  to  popularity." 

^ouvier's  Law  Dictionary;   Lawson  on  Con.   (2d  ed.)   415. 
2 1*  Henry  IV,  Act  III,  Scene  II. 
3Tiedeman,  R.  P.   (3d  ed)   Sees.  24,  536. 
4 1  Reeve's  Hist.  Eng.  Law,  90. 

The  conveyance  by  feoffment  has  become  obsolete  in  England 
now  and  in  this  country  has  not  been  used  in  practice.  TJede- 
man,  on  R.  P.  (3d  ed.),  Sees.  24,  536;  Bacon,  Abr.;  Sheppard, 
Touch,  c.  9;   Coke,  Litt.  9;   4  Kent's  Comm.  467. 


FIRST  HENRY  THE  FOURTH.  261 

Sec.  227.    Alien.— 

"K.  Hen.    .    .    Thy  place  in  council  thou  hast  rudely  lost, 
Which  by  thy  younger  brother  is  supplied, 
And  art  almost  an  alien  to  the  hearts 
Of  all  the  court  and  princes  of  my   blood."1 

An  alien  is  a  foreigner,  or  one  of  foreign  birth  and  in 
England  one  born  out  of  the  allegiance  of  the  king  was 
deemed  a  foreigner.2  An  alien  in  most  countries  is 
barred  from  holding  real  estate  either  by  descent  or  by 
operation  of  law  and,  at  common  law,  if  he  purchased 
land,  he  was  liable  to  be  dispossessed,  upon  office  found.3 

Sec.  228.    Factor.— Broker.— 

"P.  Hen.     .     Percy  is  but  my  factor,  good  my  lord, 
To  engross  up  glorious  deeds  on  my  behalf; 
And  I  will  call  him  to  so  strict  account, 
That  he  shall  render  every  glory  up."4 

A  factor  is  an  agent,  employed  to  sell  goods  or  mer- 
chandise for  his  principal,  for  a  compensation,  commonly 
called  factorage  or  commission.5  One  of  the  first  duties 
of  a  factor — like  any  one  else  standing  in  such  fiduciary 
relation — is  to  render  a  just  account  to  the  principal  of 
all  his  dealings  for  him,  and  to  pay  him  the  money  he 
may  receive  for  him.6  Prince  Henry  was  clearly  right 
when  treating  Hotspur  as  his  factor,  to  say  that  "I  will 
call  him  to  a  strict  account." 


'1'  Henry  IV,  Act  III,   Scene   II. 

2Bouvier's  Law  Dictionary 

3  2  Kent's  Comm.  50;  7  Coke,  25  a.  Of  course  the  disability  of 
aliens  is  removed  by  treaty  with  the  United  States  and  by  most 
of  the  different  states  in  this  country,  by  statute. 

*V  Henry  IV,  Act  III,  Scene  II. 

5  Story,  Agency,  sec.  268;   Paley,  Agency,  243. 

6  3  Chitty,  Com.  Law,  193;   2  Kent's  Comm.   (3d  ed.)   622. 

Clarence  tells  King  Edward,  in  3'  Henry  VI:  "Clar.  In  choos- 
ing for  yourself,  you  show'd  your  judgment;  Which,  being  shal- 
low, you  shall  give  me  leave,  To  play  the  broker  in  mine  own 
behalf."     (Act  IV,  Scene  I.) 


262  THE  LAW  IN  SHAKESPEARE. 

Sec.  229.    Maiming. — 

"Wor.     Your  father's  sickness  is  a  maim  to  us. 
Hot.     A  perilous  gash,  a  very  limb  lopp'd  off."1 

"Maim,"  in  the  criminal  law,  is  to  deprive  a  person  of 
such  part  of  his  body  as  to  render  him  less  able  in  fight- 
ing or  defending  himself  than  he  would  otherwise  have 
been,  if  not  so  deprived.2 

The  true  meaning  of  the  term  is  clearly  implied  by 
the  verse  quoted,  as  the  absence  and  sickness  of  the  Earl 
of  Northumberland  is  compared  to  a  vital  part  of  the 
body  necessary  to  be  used  in  fighting  and  this  meaning 

In  the  farce  wherein  Buckingham  urges  Gloster  to  accept  the 
crown,  in  King  Richard  III,  the  Poet  makes  the  former  say: 
"Buck.  .  .  .  Not  as  protector,  steward,  substitute,  Or  lowly 
factor  for  another's  gain;  ....  In  this  just  suit,  come  I 
to  move  your  grace."     (Act  III,  Scene  VII.) 

Pandarus  tells  Troilus  and  Cressida,  after  ratifying  their  pre- 
contract of  marriage:  "Pan.  Let  all  inconstant  men  be  Troil- 
uses,  all  false  women  Cressids,  and  all  brokers-between  Pandars." 
(Act  III,  Scene  II.) 

After  discovery  of  Cressida's  perfidy,  Troilus  tells  Pandarus, 
who  had  brought  them  together,  in  Troilus  and  Cressida:  "Tro. 
Hence,  broker  lackey:  ignomy  and  shame  pursue  thy  life,  and 
live  aye,  with  thy  name."     (Act  V,  Scene  XI.) 

Iachimo,  in  Cymbeline,  refers  to  himself,  in  his  talk  with 
Imogen,  in  falsely  reporting  a  purchase  for  the  Emperor,  wherein 
he  had  acted  as  "the  factor  for  the  rest."     (Act  I,  Scene  VII.) 

Polonius  tells  Ophelia,  in  Hamlet: 
''Pol.     .     .     In  few,  Ophelia, 

Do  not  believe  his  vows:   for  they  are  brokers, 
Not  of  that  die  which  their  investments  show, 
But  mere  implorators  of  unholy  suits, 
Breathing  like   sanctified   and   pious   bonds, 
The  better  to  beguile."  (Act  I,  Scene  HI.) 

The  maid,  in  A  Lover's  Complaint,  complained  of  her  false 
lover  that  "deceits  were  gilded  in  his  smiling,"  and  .  .  "vows 
were  ever  brokers  to  defiling."     (172,  173.) 

1 1'  Henry  IV,  Act  IV,  Scene  I. 

2Chitty,  Cr.  Law,  244;    Sherwood  Cr.  Law,  Ch.  23. 


FIRST  HENRY  THE  FOURTH.  263 

is  enlarged  upon  by  Hotspur,  as  likening  him  to  ''a  very 
limb  lopp'd  off." 

Sec.  230.    Reprisal.— 

"Hot.     ...     I  am  on  fire, 

To  hear  his  rich  reprisal  is  so  nigh."1 

A  reprisal  is  the  forcible  taking*  of  property  or  other 
thing  from  one  nation,  by  another,  in  satisfaction  for  an 
injury  committed  by  the  former  on  the  latter.2  The  re- 
prisal mentioned  here  is  in  the  nature  of  a  general  reprisal, 
which  is  made  by  virtue  of  a  commission  delivered  to 
officers  or  citizens  of  the  aggrieved  state  or  nation,  direct- 
ing them  to  take  the  person  or  property  belonging  to  the 
offending  state  or  nation,  wherever  it  can  be  found.3 

Sec.  231.    Counterfeit. — 

"Fal.  .  .  .  Counterfeit?  I  lie,  I  am  no  counterfeit: 
To  die  is  to  be  a  counterfeit ;  for  he  is  but  a  counter- 
feit of  a  man,  who  has  not  the  life  of  a  man:  but  to 
counterfeit  dying,  when  a  man  thereby  liveth,  is  to  be 
no  counterfeit,  but  the  true  and  perfect  image  of  life 
indeed."4 

In  the  criminal  law,  a  counterfeit  is  something  made 
false,  in  the  semblance  of  that  which  is  true.5     To  make 

Cade  thus  refers  to  the  kingdom,  in  2'  Henry  VI:  "Cade.  .  -. 
thereby  is  England  maimed,  and  fain  to  go  with  a  staff,"  etc. 
(Act  IV,  Scene  II.) 

The  earl  of  Surrey,  tells  Cardinal  Wolsey,  in  King  Henry  VIII : 
"Sur.  First,  that,  without  the  king's  assent  or  knowledge,  you 
wrought  to  be  a  legate;  by  which  power,  you  maim'd  the  juris- 
diction of  all  bishops."     (Act  III,  Scene  II.) 

Upon  being  assaulted  by  Iago,  in  Othello,  Roderigo  cries:  "I 
am  maim'd  forever: — Help,  ho."     (Act  V,  Scene  I.) 

1  V  Henry  IV,  Act  IV,  Scene  I. 

21   Bl.   Comm.   c.   7. 

3Wheaton,  Int.  Law;   2  Vattel,  Law  Nations,  sec.  342. 

*V  Henry  IV,  Act  V,  Scene  IV. 

6Viner,  Abr.  Counterfeit. 


264  THE  LAW  IN  SHAKESPEARE. 

something  counterfeit  always  implies  a  fraudulent  intent, 
which  of  course  is  a  necessary  ingredient  of  every  criminal 
act.  The  distinction  noted  by  Falstaff  is  based  upon  the 
very  essential  definition  of  a  criminal  counterfeit,  for  a 
live  man  would  not  bear  the  same  semblance  as  a  dead 
man,  as  the  essential  of  life  would  be  present  and  only  a 
dead  man  could  be  a  true  counterfeit  of  one  without  life, 
in  the  true  sense  of  a  legal  counterfeit. 

Prince  John  thus  addressed  the  archbishop  of  York,  in  2' 
Henry  IV:  "P.  John.  .  .  .  You  have  taken  up,  under  the 
counterfeited  zeal  of  God,  The  subjects  of  his  substitution,  my 
father."     (Act  IV,  Scene  II.) 

Gower  said  of  Pistol,  in  Henry  V:  "Why,  this  is  an  arrant 
counterfeit  rascal;  I  remember  him  now;  a  bawd,  a  cut-purse." 
(Act  III,  Scene  VI.) 

Gower  said  to  Pistol,  in  Henry  V:  "Gow.  Go,  go — you  are  a 
counterfeit  cowardly  knave."     (Act  V,  Scene  I.) 

Speaking  of  Margaret,  Suffolk  said,  in  1'  Henry  VI :  "Suff.  As 
plays  the  sun,  upon  the  glassy  streams,  Twinkling  another  coun- 
terfeited beam,  So  seems  this  gorgeous  beauty  to  mine  eyes." 
(Act  V,  Scene  III.) 

Richard  says  of  Clifford,  in  3'  Henry  VI:  "Rich.  .  .  O, 
would  be  did;  and  so,  perhaps,  he  doth;  'Tis  but  his  policy  to 
counterfeit."     (Act  II,  Scene  VI.) 

Buckingham  tells  Gloster,  in  King  Richard  III:  "Buck.  Tut, 
I  can  counterfeit  the  deep  tragedian."     (Act  III,  Scene  V.) 

Thersites  says  to  Patroclus,  in  Troilus  and  Cressida:  "Ther. 
If  I  could  have  remembered  a  gilt  counterfeit,  thou  would'st 
not  have  slipped  out  of  my  contemplation."     (Act  II,  Scene  III.) 

Timon  of  Athens  tells  the  Poet  and  Painter:  "Tim.  Thou 
draw'st  a  counterfeit,  best  in  all  Athens;  thou  art,  indeed,  the 
best:  thou  counterfeit'st  most  lively."     (Act  V,  Scene  I.) 

Coriolanus  tells  the  citizens  from  whom  he  seeks  support: 
"Cor.  .  .  and  since  the  wisdom  of  their  choice  is  rather  to  have 
my  hat  than  my  heart,  I  will  practice  the  insinuating  nod,  and  be 
off  to  them  most  counterfeitly;  that  is  sir,  I  will  counterfeit  the 
bewitchment  of  some  popular  man,  and  give  it  bountifully  to  the 
admirers."     (Act  II,  Scene  III.) 

Romeo  asks  Benvolio  and  Mercutio:  "Good-morrow  to  you 
both.     What  counterfeit  did  I  give  you?"     (Act  II,  Scene  IV.) 


FIRST  HENRY  THE  FOURTH.  265 

Sec.  232.     Death  by  judicial  sentence. — 

"King.     Bear  Worcester  to  the  death,  and  Vernon  too; 
Other  offenders  we  will  pause  upon."1 

The  king's  orders  respecting  the  fate  of  the  Earl  of 
Worcester  and  Sir  Richard  Vernon,  was  equivalent  to  a 
direction  to  place  them  upon  speedy  trial  for  their  treason 
and  in  a  summary  manner  accomplish  their  death  by 
judicial  sentence.2  The  trials  of  such  prisoners  were 
hardly  trials,  even  in  names,  because  when  the  victorious 
army  or  the  head  of  such  an  army  desired  to  accomplish 
the  death  of  any  of  the  prisoners  taken,  at  this  period,  it 
was  undertaken  and  carried  out,  with  but  little  delay. 

1 1'  Henry  IV,  Act  V,  Scene  V. 

2Rolfe's  First  Part  of  King  Henry  IV,  p.   256,   notes. 

Cloten  says  to  Guiderius,  in  Cymbeline: 
"Die  the  death: 

When  I  have  slain  thee  with  my  proper  hand, 
I'll  follow  those  that  even  now  fled  hence." 

(Act  IV,  Scene  II.) 


CHAPTER  XIX. 

"SECOND  PART  OF  KING  HENRY  THE  FOURTH." 

Sec.  233.  Accomplices. 

234.  Assurance — Security. 

235.  Punishment  by  the  stocks. 

236.  Infamy. 

237.  Laws  of  Land-service. 

238.  Action. 

239.  Eating  flesh  contrary  to  law. 

240.  "Faitors." 

241.  Inns  of  Court. 

242.  A  "rotten  case" — No  Counsel  in. 

243.  Riot. 

244.  "A  friend  i'  the  Court." 

245.  Commitment   for  Contempt  of  Court. 

246.  Law  no  respector  of  persons. 

247.  Falstaff's  Commitment  to  prison. 

Sec.  233.    Accomplices. — 

"Mor.     The  lives  of  all  your  loving  complices 

Lean  on  your  health ;  the  which,  if  you  give  o'er 
To  stormy  passion,  must  perforce  decay."1 

An  accomplice  is  one  who  is,  in  some  way,  concerned 
in  the  commission  of  a  crime,  but  not  as  principal.2  In  its 
broader  sense  the  term  includes  all  persons  concerned  in 
the  commission  of  the  crime,  either  as  principals  or  acces- 
sories,3 before  or  after  the  fact  and  this  is  the  sense  in 
which  it  is  used  here,  the  word  "complices,"  being  a  mere 
contraction  of  the  word  accomplices. 

1  2'  Henry  IV,  Act  I,  Scene  I. 
al  Russell,  Crimes,  21. 
3  4  Bl.  Comm.   331. 

A  Messenger,  thus  greets  the  French  Dauphin  and  soldiers,  in 
1'  Henry  VI:  "Mess.  Success  unto  our  valiant  general,  and 
happiness  to  his  accomplices."     (Act  V,  Scene  II.) 

(266) 


SECOND  HENRY  THE  FOURTH.  267 

Sec.  234.    Assurance — Security. — 

"Page,  He  said,  sir,  you  should  procure  him  better  assur- 
ance than  Bardolph :  he  would  not  take  his  bond  and 
yours;  he  liked  not  the  security. 

Fal.  ...  To  bear  a  gentleman  in  hand  and  then 
stand  upon  security:  the  whoreson  smooth-pates  do 
now  wear  nothing  but  high  shoes  and  a  bunch  of  keys 
at  their  girdles ;  and  if  a  man  is  thorough  with  them, 
in  honest  taking  up,  then  they  must  stand  upon — 
security.  I  had  as  lief  they  put  rats-bone  in  my 
mouth,  as  offer  to  stop  it  with  security.  I  looked  he 
should  have  sent  me  two  and  twenty  yards  of  satin, 
as  I  am  a  true  knight,  and  he  sends  me  security. 
Well,  he  may  sleep  in  security."1 

Assurance  is  here  used  in  the  sense  of  indemnity  or 
insurance  and  not  as  an  instrument  of  conveyance  or  war- 
ranty of  property  conveyed,  as  it  is  more  properly  used,  in 
a  strictly  legal  meaning.2  A  security  is  that  which  ren- 
ders a  matter  sure  or  certain  as  an  instrument  which 
guarantees  the  performance  of  a  certain  contract.3  It  is 
used,  also,  to  apply  to  a  person  who  engages  to  see  to  the 
performance  of  another's  agreement4  and  this  is  the  sense 
in  which  Falstaff  uses  it  in  the  above  lines. 


Young  Clifford,  thus  urges  his  father,  in  2'  Henry  VI: 
"Y.  Cliff.    And  so,  to  arms,  victorious  father, 

To  quell  the  rebels  and  their  'complices."     (Act  V,  Scene  I.) 

Edward  thus  replies  to  Warwick,  in  3'  Henry  VI:  "K.  Edw. 
Yet,  Warwick,  in  despite  of  all  mischance,  Of  thee  thyself,  and 
all  thy  'complices,  Edward  will  always  bear  himself  as  king." 
(Act  IV,  Scene  III.) 

*2'  Henry  IV,  Act  I,  Scene  II. 
3  2  Bl.  Comm.  294. 
3Bouvier's  Law  Dictionary. 
*3  Blackf.  (Ind.)  431. 

Lord  Scroop  remonstrated  against  the  liberation  of  a  prisoner, 
King  Henry  V,  asked  to  be  liberated,  as  follows:  "Scroop.  That's 
mercy,  but  too  much  security:  Let  him  be  punished,  Sovereign, 
lest  example,  breed,  by  his  sufferance,  more  of  such  a  kind." 
(Act  II,  Scene  II.) 


268  THE   LAW   IN   SHAKESPEARE. 

Sec.  235.    Punishment  by  the  stocks. — 

"Ch.  Jus.  To  punish  you  by  the  heels,  would  amend  the 
attention  of  your  ears;  and  I  care  not,  if  I  become 
your  physician. 

Fal.  I  am  as  poor  as  Job,  my  lord;  but  not  so  patient; 
your  lordship  may  minister  the  potion  of  imprison- 
ment to  me,  in  respect  of  poverty ;  but  how  I  should 
be  your  patient  to  follow  your  prescriptions,  the  wise 
may  make  some  dram  of  a  scruple,  or,  indeed,  a 
scruple  itself."1 

The  Chief  Justice  here  clearly  threatens  Falstaff  with 
the  punishment  by  use  of  the  stocks  for  his  running  away, 
after  the  warrant  for  his  arrest  for  the  Gads-hill  rob- 
bery and  Falstaff,  by  a  covert  threat,  indicates  to  the  Chief 
Justice  that  if  he  is  so  punished,  the  Prince  of  Wales  would 
no  doubt  interfere  to  effectuate  his  escape. 

"Stocks"  was  an  apparatus  of  wood,  much  used,  in 
former  times,  for  the  punishment  of  offenders  against  the 
English  laws.  The  culprit  was  placed  on  a  bench  with  his 
feet  fastened  in  holes,  under  a  movable  board  and  he  was 
allowed  to  remain  there  according  to  the  severity  of  the 
punishment  desired  to  be  inflicted.  In  1350,  (25  Edw. 
Ill)  provision  was  made  for  application  of  the  stocks  to 
unruly  artificers  and  in  1376  the  Commons  prayed  the 
King  to  establish  stocks  in  every  village  in  the  kingdom. 
It  became  a  common  method  of  punishment  about  the  time 
of  the  Poet  and  was  used  in  conjunction  with  the  whip- 
ping post,  frequently,  about  that  period,  for  the  punish- 
ment of  such  trifling  offenders  as  Falstaff  and  his  com- 
panions.2 

In  excusing  his  refusal  of  a  loan  to  Timon  of  Athens,  Lucullus 
said  to  Flaminius:  "Lucul.  .  .  .  thou  knowest  well  enough, 
although  thou  comest  to  me,  that  this  is  no  time  to  lend  money; 
especially  upon  bare  friendship,  without  security."  (Act  III, 
Scene  I.) 

1 2'  Henry  IV,  Act  I,  Scene  II. 

2  III  Reeve's  History  Eng.  Law,  345. 


SECOND  HENRY  THE  FOURTH.  269 

Volumnia  tells  Coriolanus,  in  her  appeal  for  Rome,  before  his 
tent:  "Vol.  There  is  no  man  in  the  world  more  bound  to  his 
mother;  yet  here  he  lets  me  prate,  like  one  i'the  stocks."  (Act  V, 
Scene  III.) 

The  process  whereby  the  duke  of  Cornwall  and  his  wife  Regan, 

placed  the  Earl  of  Kent  in  the  stocks,  in  King  Lear,  is  described 

as  follows: 

"Corn.    Fetch  forth  the  stocks,  ho: 

You  stubborn  ancient  knave,  you  reverend  braggart, 
We'll  teach  you — 

Kent.     Sir,   I  am   too  old  to  learn; 

Call  not  your  stocks  for  me;  I  serve  the  king, 
On  whose  employment  I  was  sent  to  you: 
You  shall  do  small  respect,  show  too  bold  malice 
Against  the  grace  and  person  of  my  master, 
Stocking  his  messenger. 

Corn.    Fetch  forth  the  stocks: 

As  I've  life  and  honour,  there  shall  he  sit  till  noon. 
(Stocks  brought  out.) 

Corn.    This  is  a  fellow  of  the  self-same  colour 

Our  sister  speaks  of: — Come,  bring  away  the  stocks. 

Olo.    Let  me  beseech  your  grace  not  to  do  so: 
.     .     .     .     your  purpos'd  low  correction 
Is  such,  as  basest  and  contemned'st  wretches, 
For  pilferings,  and  most  common  trespasses, 
Are  punish'd  with:    the  king  must  take  it  ill, 
That  he's  so  slightly  valued  in  his  messenger, 
Should  have  him  thus  restrain'd. 

Corn.    I'll  answer  that. 

Reg.    My  sister  may  receive  it  much  more  worse, 
To  have  her  gentleman  abus'd,  assaulted, 
For  following  her  affairs. — Put  in  his  legs. — 

(Kent  is  put  in  the  stocks.)" 
(Act  II,  Scene  II.) 

The  Fool  tells  Kent:  "An  thou  had'st  been  set  i'the  stocks 
for  that  question,  thou  had'st  well  deserved  it." 

Kent  asks  the  Fool:  "Where  learned  you  this,  fool?"  And  he 
replies: 

"Fool.  Not  i'the  stocks,  fool."  And  when  Lear  appears,  he 
asks:  "Lear.  Who  put  my  man  i'the  stocks?"  (Act  II,  Scene 
IV.) 


270  THE  LAW  IN  SHAKESPEARE. 

Sec.  236.    Infamy.— 

t4Ch.  Jus.     Well,  the  truth  is,  Sir  John,  you  live  in  great 

infamy. 
Fal.  He  that  buckles  him  in  my  belt  cannot  live  in 
less."1 
Infamy,  at  common  law,  was  the  condition  produced 
by  the  conviction  of  crime  and  the  loss  of  honor,  which 
was  held  to  render  the  infamous  person  incompetent  as  a 
witness.2  A  man,  for  instance,  who  was  guilty  of  an 
offense  inconsistent  with  the  fundamental  principles  of 
honesty  and  humanity,  was  called  an  infamous  person, 
and  the  law  considered  his  oath  of  no  weight,  in  a  court 
of  justice,  because  he  was  unworthy  of  belief.3  The  Chief 
Justice  here  accused  Falstaff  of  leading  an  idle,  trifling, 
swindling,  fraudulent  existence,  which  made  him  an 
infamous  person,4  or  one  unworthy  of  respect. 

Sec.  237.    Laws  of  land-service. — 

"Ch.  Jus.  I  sent  for  you,  when  there  were  matters  against 
you  for  your  life,  to  come  speak  with  me. 

Fal.  As  I  was  then  advised  by  my  learned  counsel  in  the 
laws  of  this  land  service,  I  did  not  come."5 

Falstaff  here  refers  to  his  knight  service,  as  a  soldier, 
under  the  king  and  the  advice  given  him  as  to  his  exemp- 
tion from  answering  to  the  civil  authorities,  while  engaged 
in  such  service.  Military  service,  under  the  feudal  sys- 
tem, was  evidently  "this  land  service"  referred  to,  for 

•2*  Henry  IV,  Act  I,  Scene  II. 

2  Gilbert  Evidence,  256. 

3  Coke,  Litt.  6;   2  Rolle,  Abr.  886. 
*  Coke,  Litt.  6. 

Queen  Margaret  is  made  to  say,  of  Gloster's  death,  in  2'  Henry 
VI: 
"Q.  Mar.    .    .    This  get  I  by  his  death:  Ah,  me,  unhappy; 

To  be  a  queen  and  crown'd  with  infamy."  (Act  III,  Scene  II.) 

5  2'  Henry  IV,  Act  I,  Scene  II. 


SECOND  HENRY  THE  FOURTH.  271 

under  the  feudal  tenure,  when  the  lord  called  upon  the 
knights  to  render  such  service,  in  support  of  the  king, 
they  were  compelled  to  do  so  and  certain  exemptions 
applied  to  them  when  so  engaged.  The  sovereign,  in 
England  had  authority,  in  time  of  war,  by  articles  of 
war,  to  dispose  of  all  crimes  not  specified  by  military  law, 
and  to  assess  all  punishments  not  reaching  to  death  or 
mutilation1  and  Falstaff  here  attempts  to  hide  behind  this 
authority  as  a  cloak  to  protect  him  from  his  failure  to 
answer  to  the  civil  authority. 

Sec.  238.    Action.— 

"Host.     Master  Fang,  have  you  entered  the  action? 
Fang.     It  is  entered."2 

In  practice,  an  "action"  is  the  formal  demand  of  one's 
rights,  from  another  person,  made  and  insisted  upon,  in 
a  formal  manner,  in  a  court  of  justice.3  This  is  the  kind 
of  an  action,  these  lines  refer  to,  for  Hostess  Quickley  had 
sued  Falstaff  and  wanted  the  officer  to  arrest  him,  at  a 
time  when  the  attachment  of  the  person  was  a  proper  pro- 
ceeding upon  such  causes  of  action  for  debt  and  to  redress 
the  wrongs  of  which  she  had  made  complaint.4 

Sec.  239.    Eating  flesh  contrary  to  law. — 

"Fed.  .  .  .  Marry,  there  is  another  indictment  upon 
thee,  for  suffering  flesh  to  be  eaten  in  thy  house,  con- 
trary to  the  law;  for  the  which,  I  think,  thou  wilt 
howl."5 


1Benet,  Military  Law;    Tyler,   Military  Law. 

2  2'  Henry  IV,  Act  II,   Scene  I. 

3Bracton,  98b;   Coke,  2'  Inst.  40;   Coke,  Litt.  289. 

4  3  Bl.  Comm.  280;   4  Bl.  Comm.  283. 

Falstaff  persuades  the  Hostess  to  withdraw  her  action  against 
him,  in  this  same  play,  as  follows:  "Fal.  .  .  .  Come,  an  it 
were  not  for  thy  humors,  there  is  not  a  better  wench  in  England. 
Go,  wash  thy  face  and  draw  thy  action."     (Act  II,  Scene  II.) 

5  2'  Henry  IV,  Act  II,  Scene  IV. 


272  THE  LAW  IN  SHAKESPEARE. 

There  were  various  statutes  enacted  during  the  reign  of 
Elizabeth,  as  well  as  during  the  reign  of  James  I  forbid- 
ding boarding  house  keepers  and  victualers  from  fur- 
nishing flesh  to  be  eaten  in  their  houses,  during  the  Lenten 
season1  and  this  reference  is,  no  doubt,  to  one  of  these 
statutes,  which,  in  the  United  States,  would  be  held  to  be 
an  unconstitutional  enactment,  because  a  sumptuary  law. 

Sec.  240.     "Faitors."— 

"Pistol.  I'll  see  her  damned  first ;  to  Pluto's  damned  lake, 
by  this  hand,  to  the  infernal  deep,  with  Erebus  and 
tortures  vile  also.  Hold  hook  and  line,  say  I.  Down, 
down,  dogs :  down,  faitors :  Have  we  not  Hiren  here?"2 

The  word  "faitors,"  as  used  in  an  old  statute  of  the  reign 
of  Richard  II,  is  synonymous  with  evil-doers?  Standing 
alone,  it  would  seem  to  be  a  contraction  of  the  Latin  word 
factors,  meaning  doers ;  but  by  the  use  of  the  term  in  this 
statute,  it  is  probable  that  Shakespeare  used  it  as  a  term 
of  reproach,  from  the  preceding  word  used,  in  this  same 
connection,  so  he  must  have  been  familiar  with  this 
statute. 

Sec.  241.    Inns  of  court. — 

"Shal.  He  must  then  to  the  inns  of  court  shortly:  I  was 
once  of  Clement's-Inn ;  where,  I  think,  they  will  talk 
of  mad  Shallow  yet."4 

"Inns  of  Court"  is  the  English  name  for  those  volun- 
tary associations  or  societies,  which  have  the  exclusive 
right  of  calling  persons  to  the  English  Bar.  There  are 
four  such  societies  in  London,  i.  e.,  the  inner  temple,  the 
middle  temple,  Lincoln's  inn  and  Gray's  inn,  and  each  of 
these  inns  possesses  several  smaller  inns, — no  doubt  like 

1  Rolfe's  Second  part  of  King  Henry  IV,  p.  208,  notes;  V  Reeve's 
History  Eng.  Law. 

5  2'  Henry  IV,  Act  II,  Scene  IV. 

a  III  Reeve's  History  Eng.  Law;  Rolfe's  Second  part  of  King 
Henry  IV,  p.  201,  notes. 

*  2'  Henry  IV,  Act  III,  Scene  IL 


SECOND  HENRY  THE  FOURTH.  273 

that  mentioned  in  the  above  verse — which  are  mere  col- 
lections of  houses  or  chambers,  as  Clifford's  inn,  New  inn, 
Furnival's  inn,  etc.  The  four  inns  are  governed  by  a 
board,  called  the  "benchers,"  who  are  generally  learned 
lawyers,  and  local  habitations  are  occupied  exclusively  by 
barristers  and  are  a  source  of  great  wealth. 

Each  inn  is  self-governing  and  independent  of  the  oth- 
ers, but  an  educational  qualification  is  imposed  on  the  stu- 
dents and  other  rules  adopted  for  the  admission  into  the 
various  inns. 

The  existence  of  these  inns  dates  to  an  early  day  in  Eng- 
lish history.  It  is  beyond  dispute  that  the  Temple  was 
inhabited  by  a  law  society  in  the  reign  of  Edward  III,  for 
on  acquisition  of  the  property  in  1324,  the  same  was  leased 
to  divers  professors  of  law,  at  a  rental  of  10  lb.  per  annum 
and  these  professors  came  from  Thavies  Inn,  in  Holborn.1 
When  the  inheritance  of  this  house  again  fell  to  the  crown 
in  the  reign  of  Henry  VIII,  it  was  again  leased  to  the 
lawyers  by  this  monarch  and  they  continued  tenants  of 
the  crown  until  the  sixth  year  of  James  I,  when  a  new 
lease  was  made  for  the  benefit  of  the  students  and  pro- 
fessors of  the  law.2 


1  Dugd.  Or.  Jur.   145. 

2  III  Reeve's  Hist.  Eng.  Law,  pp.  346,  347. 

Professors  of  law  resided  in  Gray's  inn,  during  the  reign  of 
Edw.  Ill,  under  a  lease  from  Lord  Grey,  of  Wilton,  and  Henry 
VIII  granted  a  fee-farm  lease  of  the  house  to  them,  for  6  lbs.  13  s. 
4d.  per  annum.  And  in  18'  Edw.  Ill,  Lady  Clifford  granted  a 
demise  of  Clifford's  inn,  near  Fleet  street,  to  the  law  societies. 
III.  Reeve's  Hist.  Eng.  Law,  p.  347. 

Falstaff,  referring  to  his  association  with  Justice  Shallow,  at 
the  inns  of  court,  said:  "Fal.  I  do  remember  him  at  Clement's 
Inn,  like  a  man  made  after  supper  of  a  cheese-paring,  when  he 
was  naked  he  was,  for  all  the  world,  like  a  forked  radish." 
(2'  Henry  IV,  Act  III,  Scene  II.) 

Referring  further  along,  to  his  experience  at  the  inns  of  court, 
Shallow,  is  made  to  say:  "Shal.  .  .  .  you  had  not  four  such 
swing-bucklers  in  all  the  inns  of  court  again:  and  I  may  say  to 


274  THE  LAW  IN  SHAKESPEARE. 

Sec.  242.    A  rotten  case. — No  Counsel  in. — 

"Mow.     Well,  by  my  will,  we  shall  admit  no  parley. 
West.     That  argues  but  the  shame  of  your  offense :  a  rot- 
ten  case   abides   no   handling."1 

This  reply  to  Mowbray,  by  Westmoreland  evidently  re- 
fers to  the  fact  that,  at  common  law,  unless  one  had  a 
meritorious  case,  no  counsel  would  be  assigned  and  no 
defense  considered,  in  the  formal  way  of  a  trial. 

The  common  law  denied  the  privilege  of  counsel  on 
trials  of  felony  or  treason,  while  in  the  lesser  offenses, 
counsel  was  awarded.2  In  the  trial  of  the  Duke  of  Nor- 
folk, in  the  reign  of  Elizabeth,  for  treason,  he  made  a 
touching  appeal  to  the  Court,  for  counsel,  but  it  was  in 
vain,  as  his  case  was  deemed  "a  rotten  case."3 

Jeffreys  said  to  Sidney,  in  reply  to  a  demand  for  coun- 
sel :  "If  you  assign  us  any  particular  point  of  law,  if  the 
court  think  it  such  a  point  as  may  be  worth  debating,  you 
shall  have  counsel."4  And  on  the  trial  of  Cornwallis, 
Lord  Nottingham  said,  with  reference  to  counsel:  "No 
other  good  reason  can  be  given  why  the  law  refuses  to 
allow  the  prisoner  at  the  bar  counsel,  in  matters  of  fact, 
where  life  is  concerned,  excepting  this,  that  the  evidence 
by  which  he  is  condemned  ought  to  be  so  very  evident  and 

you  we  knew  where  the  bona-robas  were;   and  had  the  best  of 
them  all  at  commandment."     (2'  Henry  IV,  Act  III,  Scene  II.) 

Cade  gives  orders  to  his  followers:  "Cade.  So,  sirs: — Now  go 
some  and  pull  down  the  Savoy;  others  to  the  inns  of  court; 
down  with  them  all."     (2'  Henry  VI,  Act  IV,  Scene  VII.) 

1  2'  Henry  IV,  Act  IV,  Scene  I. 

21  Chitty,  Cr.  Law,  409;    2  Hawk,  c.  39. 

31  How.  St.  Tr.  965.  After  narrating  the  treatment  he  had 
received,  Norfolk  said:  "With  reverence  and  humble  submission, 
I  am  led  to  think  I  may  have  counsel.  And  this  I  show,  that  you 
may  think  I  move  not  this  suit  without  any  ground.  I  am 
hardly  handled ;  I  have  had  short  warning  and  no  books."  1  How. 
St.  Tr.  965. 

4  9  How.  St.  Tr.  834. 


■     SECOND  HENRY  THE  FOURTH.  275 

so  plain,  that  all  the  counsel  in  the  world  should  not  be 
able  to  answer  it."1 

So,  here,  in  denying  any  parley,  as  construed  by  West- 
moreland, the  case  was  so  clear  as  to  "abide  no  handling." 

Sec.  243.    Riot.— 

"K.  Hen.     .     .     When  that  my  care  could  not  withhold 
thy  riots, 
What  wilt  thou  do,  when  riot  is  thy  care?"2 

A  riot,  at  common  lawT,  was  a  tumultuous  disturbance 
of  the  peace  by  three  or  more  persons,  assembling  together 
with  a  mutual  intent  to  assist  each  other  against  all  who 
should  oppose  them,  in  the  execution  of  some  private  enter- 
prise, and  the  execution  or  accomplishment  of  such  enter- 
prise, in  such  a  violent  and  turbulent  manner,  as  to  cause 
terror  or  disturbance  to  the  people  of  a  neighborhood,  re- 
gardless of  whether  the  act  accomplished  was  lawful  or  un- 
lawful.3 

The  King  here,  of  course,  refers  to  such  unlawful  enter- 
prises as  that  at  Gads-hill  and  other  such  escapades,  ac- 
complished by  the  Prince,  Falstaff,  Poins,  Bardolph  and 
their  companions,  and  the  meaning  is  plainly  to  be  de- 
rived from  the  language  used,  that  if,  when  he  was  so 
careful  to  dissuade  him  from  such  conduct,  without  suc- 
cess, what  would  result,  when  he  had  only  his  own  inclina- 
tions to  follow  without  hindrance,  with  a  keen  desire  to 
accomplish  such  unlawful  enterprises. 

xl   How.   St.   Tr.   149. 

2  2'  Henry  IV,  Act  IV,  Scene  IV. 

3  Coke,  3  Inst.,  176;   4  Bl.  Comm.  146. 

The  subject  of  riots  occasioned  a  statute  during  the  reign  of 
Henry  IV  (13  Henry  IV,  c.  7)  and  whether  to  suppress  the 
tumults  caused  by  the  wayward  Prince  and  his  followers,  or  for 
other  purposes,  during  this  reign  it  was  enacted  that  the  sum- 
mary method  theretofore  in  force  for  the  suppression  of  rioters, 
be  even  more  enhanced,  by  giving  to  any  two  or  more  justices 
of  the  peace,  of  any  county,  with  the  sheriff  or  UDder  sheriff, 


276  THE  LAW  IN  SHAKESPEARE. 

Sec.  244.    A  friend  in  the  court. — 

"Shal.     Yes,  Davy.     I  will  use  him  well;  a  friend  i'  the 
court  is  better  than  a  penny  in  purse."1 

This  is  a  lawyer-like  suggestion  that  a  cause  is  better 
safeguarded  when  the  incumbent  of  the  judgment  seat  is 
a  friend  of  the  party  whose  rights  are  to  be  decided.2  Of 
course  lawyers,  generally,  recognize  that  this  kind  of  in- 
fluence has  very  little  to  do  with  the  decision  of  lawsuits, 
for  according  to  correct  standards,  such  things  enter  but 
little  into  the  consideration  of  causes  to  be  decided  in 
courts  of  justice,  but  at  the  same  time,  as  the  incumbents 
of  the  judgment  seat  are  but  men,  with  human  weak- 
nesses and  emotions,  the  fact  that  a  friend  is  on  the  bench 
is  not  to  be  disparaged,  in  the  selection  of  a  forum  for  the 
consideration  of  the  rights  of  a  litigant.  Shallow  here 
intimates  that  it  is  far  better  than  money  to  have  "a  friend 
i'  the  court/'  and  the  Poet  is  right  in  putting  such  a  speech 
in  the  mouth  of  one  called  Shallow. 


authority  to  arrest  and  take  down  the  evidence  against  them 
and  by  this  record  such  offenders  were  to  stand  convicted,  the 
same  as  a  presentment  by  twelve  men.  And  this  statute  was  also 
enlarged,  during  the  reign  of  Henry  V,  by  giving  the  chancellor 
authority  to  appoint  a  commission  to  enquire  into  any  failure 
on  the  part  of  the  justices  or  sheriffs  to  discharge  their  duty, 
under  the  statute  of  13'  Hen.  IV,  c.  7.  Ill  Reeve's  History  Eng. 
Law,  pp.  432,  455. 

Speaking  of  the  former  life  of  Henry  V,  the  Archbishop  of 
Canterbury,  in  Henry  V,  (Act  I,  Scene  I)  is  made  to  say: 
"Cant.  .  .  his  addiction  was  to  courses  vain;  his  companies 
unletter'd,  rude  and  shallow;  His  hours  fill'd  up  with  riots,  ban- 
quets, sports;  and  never  noted  in  him  any  study,  any  retire- 
ment, any  sequestration  from  open  haunts  and  popularity." 

12'  Henry  IV,  Act  V,  Scene  I. 

2  It  is  probable,  as  suggested  by  Doctor  Rolfe,  that  this  expres- 
sion is  taken  from  the  old  Romaunt  of  the  Rose,  wherein  it  is 
said: 

"For  frende  in  courte  air  better  is 
Than  penny  is  in  purse,  certis." 

(Rolfe's  2'  Henry  IV,  p.  242,  notes.) 


SECOND  HENRY  THE  FOURTH.  277 

Sec.  245.    Commitment  for  contempt  of  court. — 

"Ch.  Jus.     I  then  did  use  the  person  of  your  father; 
The  image  of  his  power  lay  then  in  me : 
And,  in  the  administration  of  his  law, 
Whiles  I  was  busy  for  the  commonwealth, 
Your  highness  pleased  to  forget  my  place, 
The  majesty  and  power  of  law  and  justice, 
The  image  of  the  king,  whom  I  presented, 
And  struck  me  in  my  very  seat  of  judgment; 
Whereon,  as  an  offender  to  your  father, 
I  gave  bold  way  to  my  authority, 
And  did  commit  you."1 

To  "commit"  a  person,  is  to  send  him  to  prison  by  vir- 
tue of  a  lawful  warrant  or  order.2  The  Chief  Justice  of 
England,  as  here  explained,  in  the  enforcement  of  the 
law,  did  his  duty,  in  the  name  of  and  as  the  representative 
of  the  King,  for  the  protection  of  his  own  and  the  rights 
of  the  kingdom's  subjects.  In  this  sense,  an  infraction 
of  the  laws  of  England  was  regarded  as  an  infraction  of 
the  personal  rights  of  the  King,  and  when  the  majesty 
and  authority  of  the  law  was  attacked,  by  any  one,  as 
here  described,  it  would  be  the  duty  of  the  person  occupy- 
ing the  judgment  seat,  to  commit  the  person,  as  for  a  con- 
tempt of  court,  as  these  lines  show  was  done  in  this  in- 
stance.3 


*2'  Henry  IV,  Act  V,  Scene  II. 
21  Chitty,  Cr.  Law,  110. 

3 Bacon,  Abr.,  Courts;  Rolle,  Abr.,  219;  8  Coke,  38b;  1  Kent's 
Comm.  236. 

Under  the  Plantagenets  and  Tudors,  a  Chief  Justice  of  England 
could  be  removed,  like  any  other  officer  of  the  Crown,  (Verplanck) 
and  hence  the  King's  magnanimous  act  in  retaining  Gascoigne,  is 
the  more  noteworthy.     (Rolfe's  2'  Henry  IV,  pp.  245,  247,  notes.) 

Of  the  assault  here  referred  to,  upon  Chief  Justice  Gascoigne — 
by  the  Prince — Reeves  said:  "The  youthful  sallies  of  this  prince 
have  furnished  juridical  history,  with  an  anecdote  that  shows 
him  to  have  once  been  a  contemner  both  of  justice  and  those 
who  administered  it."  But  of  this  language,  concerning  Henry 
V,  Mr.  Finlason  observes:     "This  is  hardly  just  to  the  character 


278  THE  LAW  IN  SHAKESPEARE. 

Sec.  246.    Law  no  respecter  of  persons. — 

"King.     Happy  am  I,  that  have  a  man  so  bold, 
That  dares  do  justice  on  my  proper  son: 
And  not  less  happy  having  such  a  son, 
That  would  deliver  up  his  greatness  so, 
Into  the  hands  of  justice."1 

These  lines  have  reference  to  the  impartial  enforcement 
of  the  laws  without  respect  to  persons,  although  the  per- 
son against  whom  the  law  is  enforced  shall  be  the  son  of  a 
king.  This  quotation  of  the  words  of  the  King's  father, 
shows  that  the  King  himself,  realized  the  necessity  of  a 
strict  and  impartial  enforcement  of  the  laws  for  the  pro- 
tection of  his  own  rights. 

Justice,  being  in  itself,  confined  to  things  simply  good 
or  evil,  in  its  enforcement  each  man  must  take  such  pro- 
portion as  he  ought  to  take,  regardless  of  the  person  upon 
whom  the  law  operates,  for  in  no  other  way  can  distribu- 
tive justice  operate,  in  the  distribution  of  rewards  or 
punishments  according  to  the  merits  of  each  person,  with- 
out inequality  or  partiality.2 

of  this  king,  for,  according  to  the  version  of  the  story  commonly 
given  in  history,  the  offence,  that  of  striking  a  judge,  was  com- 
mitted by  the  prince,  and  nobly  attoned  for  by  the  king,  seeing 
that  on  his  accession  he  received  with  marked  respect  the  judge — 
Chief  Justice  Gascoigne — whom  he  is  said  to  have  struck."  (Ill 
Reeve's  History,  Eng.  Law,  p.  458.)  And  this  is  as  the  Poet 
presents  it. 

King  Henry  V  directs  the  duke  of  Exeter:  "K.  Hen.  .  . 
Uncle  of  Exeter,  enlarge  the  man  committed  yesterday,  that  rail'd 
against  our  person."     (Act  II,  Scene  II.) 

Gloster  was  committed,  in  2'  Henry  VI,  as  follows:  "Suff. 
.  .  .  I  do  arrest  you,  in  his  highness  name;  and  here  commit 
you  to  my  lord  cardinal  to  keep,  until  your  further  time  of  trial." 
(Act  III,  Scene  II.) 

Gardiner  tells  Cranmer,  in  King  Henry  VIII,  in  the  Council 
Chamber:  "Gar.  .  .  'Tis  his  highness  pleasure,  And  our  con- 
sent, for  better  trial  of  you,  From  hence,  you  be  committed  to 
the  Tower."     (Act  V,  Scene  II.) 

*2'  Henry  IV,  Act  V,  Scene  II. 

3  2  Coke,  2'  Inst.,  56;   Touillier,  Droit,  Civ.  Fr.  tit.  prel.  n.  5. 


SECOND  HENRY  THE  FOURTH.  279 

Sec.  247.    Falstaff's  commitment  to  prison. — 

"Ch.  Jus.     Go  carry  Sir  John  Falstaff  to  the  Fleet. 
Take  all  his  company  along  with  him."1 

This  is  the  Chief  Justice's  sentence  against  the  "Fat 
Knight,"  that  he  be  taken  and  incarcerated  in  the  Fleet 
street  prison,  which  takes  its  name  from  the  river  Fleet, 
that  flows  by  it,  and  upon  which  a  gate  of  the  prison 
opened.2  The  Fleet  Prison  was  first  used  by  those  who 
were  condemned  by  the  Star  Chamber,  but  it  was  used 
before  its  destruction,  as  a  prison  for  all  kinds  of  offend- 
ers.3 


1 2'  Henry  IV,  Act  V,  Scene  V. 
aRolfe's  2'  Henry  IV,  pp.  254,  255, 
3  Ante  idem. 


CHAPTER  XX. 

"KING  HENRY  THE  FIFTH." 

Sec.  248.  Seditious  and  insurrectionary  bills. 

249.  Bills  against  Ecclesiastics. 

250.  Henry  the  Fifth's  favor  toward  Ecclesiastics. 

251.  Salic  Law  and  Henry  the  Fifth's  Claim  to  France. 

252.  Lex  terra  salica  explained. 

253.  Ancestor. 

254.  Impounding  strays. 

255.  Departments  of  Government  working  harmoniously. 

256.  Adultery. 

257.  Capital  crimes. 

258.  Motive  for  crime. 

259.  Money  paid  in  earnest. 

260.  Divesting  property  rights. 

261.  Respondeat  superior  not  applicable  to  King  and  subject. 

262.  Bearing  testimony. 

263.  Martial  Law. 

Sec.  248.    Seditious  and  insurrectionary  bills. — 

"Cant.     My  lord,  I'll  tell  you,— that  self  bill  is  urg'd, 
Which,  in  the  eleventh  year  o'  the  last  king's  reign, 
Was  like,  and  had  indeed  against  us  passed, 
But  that  the  scrambling  and  unquiet  time 
Did  push  it  out  of  further  question."1 

This  has  reference  to  the  attempt,  on  the  part  of  those 
called  heretics  or  Lollards,  to  stir  up  an  insurrection 
against  the  established  church,  by  laws  forbidding  the 
holding  of  lands  and  property  by  the  church.  Certain 
sectaries,  during  the  reign  of  Henry  IV,  held  language 
of  the  most  extreme  character  and  "described  an  estab- 
lished church  as  unlawful  and  told  the  people  not  to  pay 
their  tithes."2  The  lords  and  commons  presented  a  peti- 
tion to  the  king,  stating  that  the  secretaries  excited  the 

1  Henry  V,  Act  I,  Scene  I. 

2  III  Reeve's  History  Eng.  Law,  p.  426. 

(280) 


HENRY  THE  FIFTH.  281 

people  to  take  away  the  possessions  of  the  church,  of  which 
the  clergy  were  as  assuredly  endowed,  as  the  temporal  lords 
were  of  their  inheritances  and  that  if  these  evil  purposes 
were  not  resisted,  they  would  move  the  people  to  take  away 
the  property  of  the  latter  and  have  all  things  in  common, 
to  the  open  commotion  of  the  people  and  the  subversion 
of  the  realm.1 

Sec.  249.    Bills  against  ecclesiastics. — 

"Cant.     .     .     .     If  it  pass  against  us, 

We  lose  the  better  half  of  our  possession ; 

For  all  the  temporal  lands,  which  men  devout 

By  testament  have  given  to  the  church, 

Would  they  strip  from  us ;  being  valued  thus, — 

As  much  as  would  maintain,  to  the  king's  honour, 

Full  fifteen  earls,  and  fifteen  hundred  knights; 

Six  thousand  and  two  hundred  good  esquires ; 

And,  to  relief  of  lazars,  and  weak  age, 

Of  indigent  faint  souls,  past  corporal  toil, 

A  hundred  alms  houses,  right  well  supplied; 

And  to  the  coffers  of  the  king  beside, 

A  thousand  pound  by  the  year;  thus  runs  the  bill."2 

The  growing  devices  practiced  by  ecclesiastics  for  the 
enlargement  of  the  domains  of  the  church,  which  orig- 
inally led  to  the  enactment  of  the  statute  of  mortmain  and 
the  later  statute  (15  Richard  II,  c.  V)3  preventing  the 
purchase  of  lands,  for  the  use  of  the  church,  by  lay  cor- 


*III  Rot  Pari.  fol.  583;  III  Reeve's  History  Eng.  Law,  p.  427. 

The  bill  referred  to,  led  to  the  passage  of  an  act,  of  which  Mr. 
Reeves  said:  "The  meeting  of  heretics  in  their  conventicles  and 
schools  are  stigmatized  in  this  act  with  the  name  of  confederacies 
to  stir  up  sedition  and  insurrection;  the  very  pretence  that  had 
been  made  use  of  by  the  Romans  against  the  primitive  Chris- 
tians, and  which  had  been  adopted  by  the  Romish  church  ever 
since,  to  suppress  all  opposition  to  inquiry  into  its  errors." 
Ill  Reeve's  History  English  Law,  p.  426. 

2  Henry  V,  Act  I,  Scene  I. 

3  III  Reeve's  History  Eng.  Law,  365. 


282  THE  LAW  IN  SHAKESPEARE. 

porations,  or  others,  for  its  benefit,  led  to  the  agitation  and 
attempt  to  enact  into  statutory  law,  other  edicts  to  limit 
the  growing  covetousness  of  the  church,  during  the  reign 
of  Henry  V.  During  this  period  parliament  was  appre- 
hensive not  only  of  heresy,  but  of  communism,  revolution 
and  spoliation. 

An  open  revolt  was  threatened,  about  the  time  to  which 
the  Archbishop  addresses  himself,  and  the  commons,  in 
their  address  to  the  king,  stated  that  "the  insurgents  at- 
tempted to  destroy  the  faith,  the  king,  the  temporal  and 
spiritual  power  and  all  manner  of  policy  and  law;"  to 
which  the  king  replied,  that  "they  meant  to  destroy  him, 
and  the  lords,  to  confiscate  the  possessions  *of  the  church, 
to  secularize  the  religious  orders,  to  divide  the  realm  into 
confederate  districts  and  to  appoint  a  president  of  the  com- 
monwealth."1 

Sec.  250.    Henry  V's  favor  toward  ecclesiastics. — 

"Ely.     But  what  prevention? 

Cant.     The  king  is  full  of  grace  and' fair  regard. 

Ely.     And  a  true  lover  of  the  holy  church."2 

These  lines  indicate  an  accurate  knowledge,  by  the  Poet, 
of  the  history  of  the  legislation  favorable  to  the  ecclesi- 
astics, during  the  early  period  of  the  reign  of  Henry  V, 
as  detailed  by  the  histories  of  the  statutes  of  this  reign. 
Speaking  of  these  acts,  Reeves  said:  "The  whole  secular 
power  seems,  at  the  beginning  of  this  reign,  to  have  been 
made  subservient  to  the  ends  of  the  prelates  in  suppressing 

JWols,  385;  Rot.  Pari,  iv,  24;  Rym,  ix,  89,  193;  III  Reeve's 
History  Eng.  Law,  p.  427. 

It  was  the  belief  of  this  age  that  revolution  was  threatened 
and  the  statutes  passed  at  this  period,  against  the  Lollards  and 
heretics,  were  not  the  result  of  the  agitation  of  the  clergy  alone, 
but  also  of  the  nobility  and  commonalty  of  the  realm.  (See,  2' 
Henry  V,  st.  1,  c.  vii.) 

2  Henry  V,  Act  I,  Scene  I. 


HENRY  THE  FIFTH.  283 

the  Lollards."1  In  the  preamble  of  the  statute  against 
the  Lollards,  they  were  treated  as  state  criminals  and  peo- 
ple confederated  to  destroy  the  king ;  the  justices  and  other 
peace  officers,  on  taking  their  offices,  were  required  to  take 
an  oath  to  use  the  power  of  their  various  offices  to  destroy 
such  heresies ;  they  were  made  to  suffer  forfeiture  of  their 
goods,  as  in  the  case  of  felons,  and  heresy  being  a  spiritual 
offense,  within  ten  days  after  their  arrest  they  were  de- 
livered to  the  holy  church  to  be  tried  in  accordance  with 
its  rules,  and  thus  the  intolerance  and  persecution  of  the 
church  was  given  full  sway.2 

Sec.  251.    Salic  law  and  Henry  V's  claim  to  France. — 

"K.  Hen.    .    .     .    My  learned  lord,  we  pray  you  to  pro- 
ceed, 
And  justly  and  religiously  unfold, 
Why  the  law  Salique,  that  they  have  in  France, 
Or  should,  or  should  not,  bar  us  in  our  claim."3 

The  code  of  laws  known  as  the  salic  law  is  a  collection  of 
the  popular  laws  of  the  Salic  or  Salian  Franks,  committed 
to  writing  in  barbarous  Latin,  in  the  5'  century.  Several 
texts  of  this  code  are  in  existence,  but  because  of  the  dark 
ages  in  which  it  had  its  origin,  more  or  less  mystery  sur- 
rounds it.  The  code  relates  principally  to  the  definition 
and  punishment  of  crimes,  but  there  is  a  chapter  or  por- 
tion of  the  code  relating  to  the  succession  of  salic  lands, 
which  was  probably  inserted  in  the  law,  at  a  later  date. 
Salic  lands,  or  terra  salica,  came  to  mean  inherited  land  as 
distinguished  from  property  otherwise  acquired,  but  even 
in  the  15'  century,  as  the  verse  quoted  indicates,  there 
was  but  little  known  as  to  the  origin  or  exact  meaning  of 
this  law.  It  was  by  a  very  doubtful  construction  that  the 
salic  law  in  the  14'  century  was  held  to  exclude  the  suc- 

1III  Reeve's  History  Eng.  Law,  p.  452. 
2  III  Reeve's  History  Eng.  Law,  p.  453. 
8  Henry  V,  Act  I,  Scene  II. 


284  THE  LAW  IN  SHAKESPEARE. 

cession  of  females  to  the  throne  of  France,  but  on  the  acces- 
sion of  Phillip  the  Long,  it  was  given  this  interpretation, 
and  the  fact  that  Edward  III  rested  his  claim  to  the  throne 
on  female  succession  no  doubt  led  the  French  to  place  this 
meaning  on  the  law"  and  to  adhere  to  it  for  all  future  time.1 

Sec.  252.    Lex  terra  salica  explained. — 

"Cant.     .     .     .     There  is  no  bar, 

To  make  against  your  highness'  claim  to  France, 

But  this,  which  they  produce  from  Pharamond, — 

In  terram  Salicam  mulieres  ne'succedant, 

No  woman  shall  succeed  in  Salique  land: 

Which  Salique  land,  the  French  unjustly  gloze, 

To  be  the  realm  of  France,  and  Pharamond 

The  founder  of  this  law  and  female  bar. 

Yet  their  own  authors  faithfully  affirm, 

That  the  land  Salique  lies  in  Germany, 

Between  the  floods  of  Sala  and  of  Elbe : 

Where  Charles  the  Great,  having  subdued  the  Saxons, 

There  left  behind  and  settled  certain  French; 

Who,  holding  in  disdain  the  German  women, 

For  some  dishonest  manners  of  their  life, 

Established  there  this  law,  to-wit,  no  female 

Should  be  inheritrix  in  Salique  land ; 

Which  Salique,  as  I  said,  'twixt  Elbe  and  Sala, 

Is  at  this  day  in  Germany  call'd  Meisen. 

Thus  doth  it  well  appear,  the  Salique  law 

Was  not  devised  for  the  realm  of  France : 

Nor  did  the  French  possess  the  Salique  land 

Until  four  hundred  one  and  twenty  years 

After  defunction  of  King  Pharamond, 

Idly  suppos'd  the  founder  of  this  law. 

King  Pepin's  title,  and  Hugh  Capet's  claim, 
King  Lewis  his  satisfaction,  all  appear 
To  hold  in  right  and  title  of  the  female : 
So  do  the  kings  of  France  unto  this  day ; 


1  Hessel's  Lex  Salica;  Hallam's  Europe  in  the  Middle  Ages. 

For  Holinshed's  exposition  of  this  law,  which  is  taken  by  the 
Poet,  in  the  following  verse,  see  Rolfe's  King  Henry  the  Fifth, 
p.  188,  notes. 


HENRY  THE  FIFTH.  285 

Howbeit  they  would  hold  up  this  Salique  law 
To  bar  your  highness  claiming  from  the  female ; 
And  rather  choose  to  hide  them  in  a  net, 
Then  amply  to  imbare  their  crooked  titles 
Usurp'd  from  you  and  your  progenitors."  x 

As  stated  here,  the  Frankish  law  did  not  in  general  ex- 
clude females  but  the  succession  to  these  Salique  lands  was 
confined  to  males,  probably  from  the  importance  of  pro- 
curing the  military  service,  which  the  females  could  not 
render,  and  this  law,  while  not  in  general  in  vogue  in 
France,  was  invoked  to  bar  the  claim  of  the  successors  of 
Edward  III  to  the  French  crown.  The  English  have 
always  been  inclined  to  ridicule  the  rule  excluding  females 
from  inheriting  the  throne  of  France,  and  Lord  Bacon 
gives  a  purported  colloquy  between  an  Englishman  and 
a  Frenchman,  wherein  the  Englishman  construed  the  law 
to  mean  that  succession  was  barred  as  to  "the  women  them- 
selves, not  of  such  males  as  claimed  by  women."  And  on 
being  asked  where  this  gloss  was  found,  he  replied:  "I'll 
tell  you,  sir ;  look  on  the  backside  of  the  record  of  the  law 
Salique,  and  there  you  shall  find  it  endorsed,"  implying, 
as  Bacon  concludes,2  that  there  was  no  such  thing  as  the 
law  Salique,  but  this  land  construction  was  a  fiction. 

Sec.  253.    Ancestor. — 

"Cant.     .     .     .     we,  of  the  spirituality, 

Will  raise  your  highness  such  a  mighty  sum, 
As  never  did  the  clergy  at  one  time, 
Bring  in  to  any  of  your  ancestors."3 

1  Henry  V,  Act  I,  Scene  II. 

2  Apophthegms,  No.  184. 

Mr.  Davis,  in  his  Law  in  Shakespeare,  observes,  in  regard  to 
the  law  Salique:  "It  was  decreed  by  Pharamond  and  was  part  of 
the  code  of  the  law  of  the  Salians,  a  people  of  Germany,"  (Page 
184)  but  history  rather  leads  to  the  conclusion  the  Poet  makes 
the  Archbishop  reach,  that  "Pharamond"  was  "idly  suppos'd  the 
founder  of  this  law." 

8  Henry  V,  Act  I,  Scene  II. 


286  THE  LAW  IN  SHAKESPEARE. 

An  ancestor  is  one  who  has  preceded  another  in  a  direct 
line  of  descent.  In  real  property  law,  the  word  is  used 
to  indicate  the  person  last  seized  of  the  estate,  or  a  former 
possessor.1 

At  the  common  law  the  word  is  understood  to  apply  as 
well  to  the  immediate  parents  of  the  person  in  being,  as 
to  those  that  are  higher  up,  in  the  line  of  descent,2  and 
this  is  the  meaning  to  be  given  to  the  term  as  used  here. 

Sec.  254.    Impounding  strays. — 

"Cant.    She  hath  herself  not  only  well  defended, 
But  taken  and  impounded  as  a  stray, 
The  King  of  Scots."3 

Any  domestic  animal,  which  has  left  its  inclosure  or 
place  of  keeping  is  held  to  be  a  "stray,"  and  at  common 
law,  a  stray  animal  was  apt  to  be  impounded  or  taken  up 
and  placed  in  an  inclosure  called  a  pound,  for  safe  keep- 
ing, until  the  damages  and  costs  were  paid.4 

Distress,  at  common  law,  was  a  remedy  for  the  damages 
done  by  stray  cattle  feeding  on  land  of  the  owner,  and 
trodding  down  the  grass,  and  the  law  authorizing  the 
municipality  to  impound  stray  cattle  is  the  outgrowth  of 
this  common  law  rule  of  property.5 

The  King  of  the  Scots  here,  by  the  Archbishop,  is 
likened  to  a  "stray,"  who  had  been  caught,  damage 
feasant,  and  impounded  for  safe  keeping. 


1  2  Bl.  Com.  201. 

2  Bacon,  Abr.;   2  Bl.   Com.   209;    Cary,  Litt,   45. 

The  Duke  of  Exeter  tells  the  French  King,  in  Henry  V:  "Exe. 
And,  when  you  find  him  evenly  deriv'd  from  his  most  fam'd  of 
famous  ancestors,  Edward  the  Third,  he  hids  you  then  resign 
your  crown  and  kingdom  indirectly  held  from  him,  the  native 
and  true  challenger."     (Act  II,  Scene  IV.) 

3  Henry  V,  Act  I,  Scene  II. 

♦Webster's  Dictionary,  where  these  lines  by  the  Poet  are  used 
to  illustrate  a  "stray"  and  the  word  "impound." 
6  3  Bl.  Comm.  6;   Coke,  Litt.  142,  161. 


HENRY  THE  FIFTH.  287 

Sec.  255.    Departments  of  government  working  harmoni- 
ously.— 

"Exe.     .     .     .     government,  though  high  and  low,  and 
lower, 
Put  into  parts,  doth  keep  in  one  concent, 
Congruing  in  a  full  and  natural  close, 
Like  music."  x 

The  institution  or  institutions,  by  which  a  state  or 
nation  makes  and  carries  out  those  rules  of  action  neces- 
sary to  enable  men  to  live  in  a  social  state,  are  generally 
called  the  government  of  that  state  or  nation.2  According 
to  the  seat  of  the  supreme  power  of  the  state  or  nation,  the 
classification  of  the  government  necessarily  differs,  and 
Aristotle's  classification  of  governments,  in  this  way  has 
been  generally  followed  down  to  modern  times.3 

The  different  branches  of  government  and  the  different 
departments  of  the  several  branches,  such  as  the  legisla- 
tive, executive  and  judicial,  all  having  the  same  common 
object  and  end, — the  proper  enjoyment  and  regulation 
of  the  rights  of  the  individual  members  of  the  social 
body, — the  operation  of  the  several  departments  ought 
to  be  harmonious  so  that  they  will  "keep  in  one  concent, 
congruing  in  a  full  and  natural  close,  like  music,"  for 
there  is  no  better  way  of  wording  the  harmonious  whole 
that  should  obtain  in  the  due  enforcement  of  the  powers 
of  government,  than  this. 

Sec.  256.    Adultery.— 

"Quick.     ...     0  Lord:  here's  corporal  Nym's — now 
we  shall  have  wilful  adultery  and  murder  commit- 
ted.   Good  lieutenant  Bardolph, — good  corporal,  offer 
nothing  here."4 
Adultery  is  the  voluntary  sexual  intercourse  of  a  mar- 
ried person  with  another,  other  than  the  offender's  hus- 

I  Henry  V,  Act  I,  Scene  II. 

I I  Bl.  Comm.  389,  391;  Vattel's  Law  of  Nations. 
•Aristotle,  Politics,  v.  ch.  9. 

*  Henry  V,  Act  II,  Scene  I. 


288  THE  LAW  IN  SHAKESPEARE. 

band  or  wife.1  If  one  of  the  parties  is  married  and  the 
other  not,  the  crime  of  the  former  is  adultery  and  that  of 
the  other  is  fornication.2  The  crime  was  not  an  indicta- 
ble offense,  at  common  law,  but  is  made  so  by  statute.3 
Of  course,  Hostess  Quick  does  not  properly  use  the  term, 
as  the  offense  could  not  be  committed  between  two  males, 
but  she  probably  intended  to  say  that  there  would  be  an 
assault  and  murder  committed,  unless  someone  interfered 
to  separate  Corporal  Nym  and  Pistol,  neither  of  whom,  it 
seems  was  hard  to  hold,  after  active  hostilities  actually 
appeared  to  be  threatened  as  a  result  of  the  "battle  of 
tongues." 

Sec.  257.    Capital  crimes. — 

"K.  Ren.     .     .  '  .     If  little  faults,  proceeding  on  dis- 
temper, 
Shall  not  be  wink'd  at,  how  shall  we  stretch  our  eye, 
When  capital  crimes,  chew'd,  swallow'd,  and  digested, 
Appear  before  us?"4 

A  "capital  crime"  at  common  law,  was  one  for  which 
the  punishment  of  death  was  inflicted.5  Treason  was  such 
a  crime,  and  this  reference,  by  trie  king,  to  the  crimes  that 
his  advisers  had  been  guilty  of,  was  for  the  purpose  of  hav- 
ing them  commit  themselves,  as  to  the  punishment  to 
be  assessed  for  the  petty  offense  then  in  question,  which, 
by  the  king's  analogous  reasoning,  would  apply,  a  fortiori, 
to  the  "capital  crime"  they  were  jointly  guilty  of,  which 


1  Bishop,  Marriage  and  Div.,  sec.   415. 
2Bouvier's  Law  Dictionary. 

3  4  Bl.  Comm.  65. 

Maecenas  tells  Octavia,  in  Antony  and  Cleopatra:  "Maec.  Each 
heart  in  Rome  doth  love  and  pity  you:  Only  the  adulterous  An- 
tony, most  large  in  his  abominations,  turns  you  off."  (Act  III. 
Scene  VI.) 

4  Henry  V,  Act  II,  Scene  II. 

5  Sherwood's  Cr.  Law,  Ch.  1;  2  Bl.  Comm.  42;  1  Bishop,  Cr. 
Law,  43. 


HENRY  THE  FIFTH.  289 

had  been  "chew'd,  swallowed  and  digested/'  or  otherwise 
committed  after  full  reflection  and  premeditation,  which 
only  added  to  the  degree  of  the  guilt. 

Sec.  258.    Motive  for  crime. — 

"Cam.     For  me, — the  gold  of  France  did  not  seduce, 
Although  I  did  admit  it  as  a  motive, 
The  sooner  to  effect  what  I  intended."1 

"Motive"  is  the  inducement,  cause  or  reason  why  a 
given  act  is  done.2  In  the  criminal  law,  motive  is  always 
an  essential  element  of  the  crime  and  the  motive  is  always 


In  Coriolanus,  Sicinius  refers  to  capital  crimes,  as  follows: 
"Sic.    Peace.    We  need  not  put  new  matter  to  his  charge: 
What  you  have  seen  him  do  and  heard  him  speak, 
Beating  your  officers,  cursing  yourselves, 
Opposing  laws  with  strokes,  and  here  defying 
Those  whose  great  power  must  try  him;  even  this, 
So  criminal,  and  in  such  capital  kind, 
Deserves  the  extremest  death."     (Act  III,  Scene  III.) 

Capital  punishment,  by  all  governments,  both  ancient  and 
modern,  has  been  deemed  to  be  within  the  legitimate  power  of 
government,  but  it  is  doubted,  by  theoretical  writers,  if  such 
punishment  is  consistent  with  natural  or  Divine  Law.  As  laws 
are  enacted  to  protect  society,  it  may  be  doubted  if  death  should 
be  inflicted  except  in  cases  where  it  is  absolutely  essential  and 
when  the  law  can  be  maintained  in  no  other  way..  This  is  the 
meaning  given  the  offense  as  viewed  by  the  speaker  in  the  above 
verse,  for  he  urges  that  the  crime  is  "in  such  capital  kind,"  that 
it  "deserves  the  extremest  death."     (Boccacia,  chap.  28.) 

In  King  Lear,  Albany  arrests  Edmund  as  follows:  "Stay  yet; 
hear  reason. — Edmund,  I  arrest  thee  on  capital  treason."  (Act 
V,  Scene  III.) 

Speaking  of  his  father's  death,  in  Hamlet,  Laertes  asks  the 
King:  "But  tell  me,  Why  you  proceeded  not  against  those  feats, 
So  crimful  and  so  capital  in  nature,"  etc.     (Act  IV,  Scene  VII.) 

1  Henry  V,  Act  II,  Scene  II. 

2Bouvier's  Law  Dictionary;  1  Bishop's  Cr.  Law,  sec.  221,  et 
sub. 


290  THE  LAW  IN  SHAKESPEARE. 

proper  to  be  explained  or  looked  into,  in  order  to  show 
the  criminal  intent  with  which  the  crime  was  committed.1 
The  earl  of  Cambridge  here,  denies  that  the  gold  re- 
ceived from  France  furnished  the  motive  for  the  crime  of 
treason,  he  had  confessed  himself  guilty  of,  although  he 
had  admitted  this  was  the  motive  for  his  entering  into 
the  conspiracy  to  kill  the  king,  but  as  he  does  not  show 
an  absence  of  criminal  intent  and  freedom  from  wrong- 
doing, he  consequently  makes  no  legal  excuse  for  his  con- 
nection with  the  treasonable  design.  . 

Sec.  259.    Money  paid  in  earnest. — 

"K.  Hen.     .     .     .     You  have  conspir'd  against  our  royal 

person, 
Join'd   with    an    enemy   proclaim'd,    and    from    his 

coffers, 
Receiv'd  the  golden  earnest  of  our  death."2 

Money  paid  in  "earnest,"  is  a  partial  payment  for  the 
purpose  of  binding  the  bargain.3  Certain  agreements  for 
the  sale  of  personal  property  are  not  legal  unless  some- 
thing in  "earnest"  is  given  to  bind  the  contract,4  and  a 
payment  of  "earnest"  gives  the  buyer  the  right  to  demand 
a  performance  of  the  contract.5 

The  King  here  speaks  of  his  own  death  as  the  consid- 
eration for  which  the  payment  was  made  and  after  the 
conspirators  had  "receiv'd  the  golden  earnest"  of  his 
death,  they  could  not  back  down  from  the  performance 
of  the  contract  and  were  legally  bound  to  kill  him,  as  they 
had  agreed  to  do,  for  the  money  paid  them. 


*1  Bishop's  Cr.  Law,  sec.  221;  1  Chitty,  Cr.  Law,  233;  8  Coke, 
146;  1  Greenleaf  Evid.  sec.  18;  9  Coke,  81a. 

2  Henry  V,  Act  II,  Scene  II. 

3  2  Kent's  Comm.  389. 

*  Benjamin,  on  Sales,  p.  161;    Tiedeman,  on  Sales,  sec.  71. 
8  Ante  idem.;  2  Bl.  Comm.  447. 

Timon  of  Athens,  tells  Phrymia  and  Timandra  on  their  quest  for 
gold  from  him:  "Tim.  More  whore,  more  mischief  first;  I  have 
given  you  earnest."     (Act  IV,  Scene  III.) 


HENRY  THE  FIFTH.  291 

Sec.  260.    Divesting  property  rights. — 

"Exe.     ...     He  wills  you,  in  the  name  of  God  Al- 
mighty, 
That  you  divest  yourself,  and  lay  apart 
The  borrow'd  glories,  that,  by  gift  of  heaven, 
By  law  of  nature,  and  of  nations,  'long 
To  him  and  to  his  heirs;  namely,  the  crown."1 

Divest,  being  practically  the  same  word  as  to  devest, 
used  at  common  law,  as  the  Poet  explains  it  in  this  verse, 
is  the  dispossession  of  one's  rights,  property  or  privileges, 
before  enjoyed.2 

The  realm  of  France  is  treated  as  belonging  to  King 
Henry  and  his  representative  demands  the  immediate  sur- 
render of  the  kingdom,  in  accordance  with  his  rightful 
title,  and  this  title  is  urged  both  according  to  the  law  of 
nations  and  that  of  nature,  meaning  his  claim  to  the  king- 
dom as  the  descendant  of  Edward  III,  who  had  established 
his  right  to  the  realm  by  force  of  arms,  and  lineal  descent. 

Sec.  261.    Respondeat   superior  not  applicable  to  King 
and  subjects. — 

"K.  Ren.  So,  if  a  son,  that  is  by  his  father  sent  about 
merchandise,  do  sinfully  miscarry  upon  the  sea,  the 
imputation  of  his  wickedness,  by  your  rule,  should  be 
imposed  upon  his  father  that  sent  him :  or  if  a  serv- 
ant, under  his  master's  command,  transporting  a 
sum  of  money,  be  assailed  by  robbers,  and  die  in 
many  unreconciled  iniquities,  you  may  call  the  busi- 
ness of  the  master  the  author  of  the  servant's  damna- 
tion : — But  this  is  not  so :  the  king  is  not  bound  to 
answer  the  particular  endings  of  his  soldiers,  the 
father  of  his  son,  nor  the  master  of  his  servant;  for 
they  purpose  not  their  death,  when  they  purpose 
their  services.  Besides,  there  is  no  king,  be  his  cause 
never  so  spotless,  if  it  come  to  the  arbitrement  of 
swords,  can  try  it  out  with  all  unspotted  soldiers. 
Some,  peradventure,  have  on  them  the  guilt  of  pre- 


\  Henry  V,  Act  II,  Scene  III. 
J  Bouvier's  Law  Dictionary. 


292  THE  LAW  IN  SHAKESPEARE. 

meditated  and  contrived  murder;  some,  of  beguiling 
virgins  with  the  broken  seals  of  perjury;  some,  mak- 
ing the  wars  their  bulwark,  that  have  before  gor'd  the 
gentle  bosom  of  peace,  with  pillage  and  robbery. 
Now,  if  these  men  have  defeated  the  law,  and  out- 
run native  punishment,  though  they  can  outstrip  men, 
they  have  no  wings  to  fly  from  God :  war  is  his  beadle, 
war  is  his  vengeance ;  so  that  here  men  are  punished, 
for  before-breach  of  the  kings  laws,  is  now  the  kings 
quarrel :  where  they  f ear'd  the  death,  they  have  borne 
life  away ;  and  where  they  would  be  safe,  they  perish : 
Then  if  they  die  unprovided,  no  more  is  the  king 
guilty  of  their  damnation,  than  he  was  before  guilty 
of  those  impieties,  for  which  they  are  now  visited. 
Every  subject's  duty  is  the  king's;  but  every  sub- 
ject's soul  is  his  own."1 

The  reasoning  of  the  King  here  is  in  strict  accordance 
with  the  relation  of  king  and  subject,  as  viewed  at  the 
common  law  and  the  rule  of  law,  which  made  the  prin- 
cipal liable  for  the  acts  of  the  agent,  performed  in  pur- 
suance of  an  express  authority,  or  within  the  general  scope 
of  his  powers,  as  agent,2  was  held  not  to  apply  to  the  rela- 
tion of  king  and  subject.  Instead  of  the  rule  respondeat 
superior,  (let  the  principal  answer)  when  it  came  to  king 
and  subject  the  rule  was  rather  respondere  non  sovereign, 
for  the  king  was  not  under  the  authority  of  man,  but  of 
God  and  the  law,  or,  as  the  maxim  puts  it,  "Rex  non  debet 
esse  sub  homine,  sed  Deo  et  lege."s 

The  Poet  makes  the  king  give  the  underlying  reason 
for  the  rule  of  law,  which  shaped  itself  into  the  maxim 
quoted,  better,  perhaps  than  half  the  lawyers  of  his  period 

1  Henry  V,  Act  IV,  Scene  I. 

2  Coke,  4'  Inst.  114. 

•Broom's  Legal  Maxims   (3*  London  ed.)    46,  111;    Bracton,  5. 

But  as  the  King  reasons,  penal  responsibility,  in  the  law,  is 
always  personal,  and  the  obligation  to  respond  or  answer  for  an 
act  never  applies  in  the  absence  of  a  commission  of  the  act,  in 
person,  or  unless  it  was  committed  by  someone  standing  in  the 
place  of  the  person  sought  to  be  held  liable  therefor. 


HENRY  THE  FIFTH.  293 

could  have  done,  and  the  reasoning  to  shift  the  responsi- 
bility for  a  war  that  he  had  brought  on,  from  his  own 
shoulders  to  the  vengeance  of  the  Divine  Economy,  is  in 
keeping  with  the  religious  training  which  prompted  the 
charge  of  an  attribute  even  beneath  that  of  the  beasts  of 
the  field — for  these  even,  cherish  no  such  thing  as  ven- 
geance— to  the  Almighty,  in  order,  no  doubt,  to  shift  the 
blame  from  other  shoulders,  on  which  it  ought  to  lie. 

Sec.  262.    Bearing  testimony. — 

"Flu.  ...  I  hope  your  majesty  is  pear  me  testi- 
mony, and  witness,  and  avouchments,  that  this  is  the 
glove  of  Alencon,  that  your  majesty  is  give  me,  in 
your  conscience  now."1 

Bearing  testimony  is  to  make  a  statement,  as  a  witness, 
under  oath  or  affirmation,  to  a  given  state  of  facts.2  This 
is  the  meaning  of  the  word  as  used  here,  and  the  speaker 
calls  upon  the  king  to  corroborate  him,  or  bear  witness, 
that  the  glove  he  had  was  the  glove  given  him  by  the  king. 

Sec.  263.    Martial  law.— 

"Flu.  An  please  your  majesty,  let  his  neck  answer  for 
it,  if  there  is  any  martial  law  in  the  'orld."3 
"Martial  law"  is  that  military  rule  or  authority,  which 
exists  in  time  of  war,  and  is  recognized  by  the  laws  of  war, 
as  to  persons  within  the  scope  of  active  military  opera- 
tions, in  so  far  as  it  may  be  necessary,  in  order  to  fully 
carry  on  the  purposes  or  objects  of  the  war.4     Martial  law, 

1  Henry  V,  Act  IV,  Scene  VIII. 

2  Bacon,  Abr.,  Evidence,   (A);   1  Greenleaf,  Evid.,  sees.  98,  328. 

3  Henry  V,  Act  IV,  Scene  VIII. 

41  Kent's  Comm.  377;  DeHart  Mil.  Law,  13-17;  O'Brien,  Mil. 
Law,  26,  30;  Tyler,  Courts  Martial,  11,  27,  58,  62,  105. 

Basset  said  to  Vernon,  in  V  Henry  VI,  after  being  struck  by  the 
latter:  "Bas.  Villain,  thou  know'st  the  law  of  arms  is  such, 
That,  who  so  draws  a  sword,  'tis  present  death; 
Or  else  this  blow  should  broach  thy  dearest  blood." 

(Act  III,  Scene  IV.) 


294  THE  LAW  IN  SHAKESPEARE. 

in  time  of  war,  supersedes  and  abrogates  the  civil  law, 
as  to  those  engaged  in  the  war,  hence  the  appeal  was  prop- 
erly made  here  to  "martial  law,"  for  the  punishment  of 
an  offender  who  was  engaged  in  the  war  himself.  It  ex- 
tends to  the  camp  and  its  environs  and  to  near  field  and 
other  operations  of  war  and  has  its  basis  in  actual  neces- 
sity and  the  chief  military  officer  is  the  person  who  en- 
forces such  rules,  so  the  King,  in  this  instance,  was  the 
proper  authority  to  ask  the  punishment  of  Pistol  from. 


CHAPTER  XXI. 

'FIRST  PART  OF  KING  HENRY  THE  SIXTH.' 


Sec. 

264. 

Homicide. 

265. 

Distraining  property. 

266. 

Proclamation. 

267. 

Truant  in  the  Law. 

268. 

Brawl. 

269. 

Outlaw. 

270. 

Contract. 

271. 

Partners. 

272. 

Fighting  in  King's  palace,  or  presence. 

273. 

Quid  pro   quo. 

274. 

Condemned  woman's  privilege  of  pregnancy. 

275. 

Compromise. 

Sec.  264.    Homicide. — 

"Reig.     Salisbury  is  a  desperate  homicide; 
He  fighteth  as  one  weary  of  his  life. 
The  other  lords,  like  lions  wanting  food, 
Do  rush  upon  us  as  their  hungry  prey."1 

Homicide  is  the  destruction  of  the  life  of  a  human 
being,  either  by  himself,  or  by  the  act,  procurement  or 
culpable  omission  of  another.2  When  the  death  is  caused 
by  the  intentional  act  of  the  deceased  himself,  the  offender 
is  called  felo  de  se  and  when  the  death  is  caused  by  another 
it  is  either  justifiable,  excusable,  or  felonious,  according 
to  the  facts  connected  with  the  killing.3 

To  constitute  the  crime  of  homicide  the  person  killed 
must  have  been  entitled  to  live,  and  in  legal  contemplation 
a  soldier  of  the  enemy,  in  time  of  war,  has  no  right  to  his 
life,  but  may  be  killed  by  the  enemy  in  battle,  without  the 
one  killing  him,  being  guilty  of  a  homicide.4    So  the 


1 1'  Henry  VI,  Act  I,  Scene  II. 

2 1  Hawkins,  PI.  Cr.  sec.  2;  2  Bishop,  Cr.  Law,  sec.  538. 

a  1  Hawkins,  PI.  Cr.  Ch.  8. 

*  2  Bishop,  Cr.  Law,  supra. 

(295) 


296  THE  LAW  IN  SHAKESPEARE. 

killing  of  the  soldiers  of  France,  by  the  soldiers  of  Eng- 
land did  not  amount  to  a  legal  homicide,  and  the  speaker 
in  this  verse  was  technically  wrong,  in  so  applying  this 
name  to  lord  Salisbury. 

Sec.  265.    Distraining  property. — 

"Glo.     .     .     .     Here's  Beaufort,   that  regards  nor   God 
nor  king 
Hath  here  distrain' d  the  Tower  to  his  use."1 

Distress,  at  common  law,  was  the  taking  of  a  chattel, 
or  other  personal  property,  out  of  the  possession  of  the 
owner,  into  the  custody  of  the  party  injured,  to  procure 
satisfaction  for  the  wrong  done.2  It  was  resorted  to  for 
the  purpose  of  enforcing  payment  of  rent,  taxes  or  other 
duties,  as  well  as  to  exact  damages  for  the  trespasses  of 
cattle.  The  remedy  is  of  great  antiquity  and  is  said  to 
have  dated  back  to  the  Gothic  nations  of  Europe,  since 
the  Roman  Empire  and  English  statutes  made  various 
amendments  to  the  remedy  since  the  days  of  Magna 
Charta.* 

As  the  remedy  by  distress  was  virtually  a  taking  of  the 
law  into  the  hands  of  the  landlord,  or  other  person  entitled 

Blackstone's  definition  of  homicide,  as  the  "killing  of  any 
human  creature,"  is  not  in  strict  accordance  with  the  law  as 
presented  by  other  writers,  as  it  leaves  out  of  the  definition  of 
the  crime  that  the  killing  must  have  been  done  by  another 
human  being.     4  Bl.  Comm.  177;   1  Hawkins,  PI.  Cr.  sec.  2. 

Repulsing  Richard's  suit,  Lady  Anne  tells  him,  in  King  Rich- 
ard III:  "Anne:  If  I  thought  that,  I  tell  thee,  homicide,  These 
nails  should  rend  that  beauty  from  my  cheeks."  (Act  I,  Scene 
II.) 

Referring  to  King  Richard,  in  his  talk  to  his  troops  before 
the  battle  Richmond  said:  "Richm.  .  .  .  For  what  is  he  they 
follow?  truly,  gentlemen,  a  bloody  tyrant  and  a  homicide."  (Act 
V,  Scene  III.) 

1  Henry  VI,  Act  I,  Scene  III. 

2  2  Bl.  Comm.  6. 

3  Bacon,  Abr.  Distress;  4  Dane,  Abr.,  126;  Taylor's  Land,  and 
Ten.,  sec.  566;  Coke,  Litt.  317. 


FIRST  HENRY  THE  SIXTH.  297 

to  the  compensation  or  redress  exacted,  it  was  more  or 
less  of  a  high  handed  proceeding,  considering  the  prop- 
erty rights  of  the  one  whose  property  was  distrained,  hence 
Gloster  accuses  the  bishop  of  Winchester  of  resorting  to 
the  remedy  of  distress  and  of  holding  the  Tower  for  his 
own  use. 

Sec.  266.    Proclamation. — 

"May.     Nought  rests  for  me,  in  this  tumultuous  strife, 
But  to  make  open  proclamation: — 
Come,  Officer,  as  loud  as  e'er  thou  canst."1 

A  proclamation  is  the  act  of  causing  some  state  matters 
to  be  published  or  made  generally  known.2  In  English 
practice,  it  was  also  the  declaration  made  by  the  crier, 
under  the  authority  of  the  court,  that  something  was 
about  to  be  done.  There  was  the  proclamation  of  rebel- 
lion, and  proclamation  of  "exigents,"  known  to  the  old 
English  law,  and  the  proclamation  here  used  comes  nearer 
the  latter  in  its  object,  for  under  this  proclamation,  on 
the  issuance  of  a  writ  of  exigent,  a  proclamation  issued 
to  the  officer  of  the  county  where  the  offenders  lived 
and  he  made  three  proclamations  for  the  offenders  to 
yield  themselves  or  be  outlawed.3  This  is  no  doubt  the 
threat  intended  by  the  Mayor  of  London,  in  this  instance, 
in  order  to  preserve  the  peace. 


1  r  Henry  VI,  Act.  I,  Scene  III. 

2  Bacon,  Abr.;  Buller,  Nisi  Pr.  226;  Dane,  Abr.;  ch.  96a;  Brooke, 
Abr. 

3  Bouvier's  Law  Dictionary. 

York  said,  in  2'  Henry  VI:  "York.  ...  as  I  hear,  the  king 
is  fled  to  London,  to  call  a  present  court  of  Parliament.  Let's 
pursue  him,  ere  the  writs  go  forth."     (Act  V,  Scene  III.) 

Hastings  orders  a  proclamation,  in  3'  Henry  VI,  as  follows: 
"Hast.  Sound,  trumpet;  Edward  shall  be  here  proclaim'd:  — 
Come,  fellow  soldier,  make  thou  proclamation.  (Gives  him  a 
paper.    Flourish.) 

Sold.     (Reads)     Edward  the  Fourth,  by  the  Grace  of  God,  etc., 

(Act  IV,   Scene  VII.) 


298  THE  LAW  IN  SHAKESPEARE. 

Sec.  267.    Truant  in  the  law.— 

"Suff.     'Faith,  I  have  been  a  truant  in  the  law; 
And  never  yet  could  frame  my  will  to  it; 
And,  therefore,  frame  the  law  unto  my  will."1 

The  speaker  means  to  convey  by  this  phrase  that  he 
had  never  followed  the  investigation  of  legal  matters  with 
any  degree  of  duty  or  timely  application,  but  had  been 
remiss  in  his  duties  in  all  matters  pertaining  to  the  law. 
In  other  words,  that  he  had  shirked  his  duty  in  legal  mat- 
ters, or  had  idled,  loitered  and  absented  himself  when 
legal  matters  were  in  issue,  instead  of  applying  himself 
as  he  ought  to  have  done. 

Sec.  268.    Brawl.— 

"War.     .     .     .     This  brawl  to-day, 

Grown  to  this  faction,  in  the  Temple  garden, 
Shall  send,  between  the  red  rose  and  the  white, 
A  thousand  souls,  to  death  and  deadly  night."2 

A  brawl  is  a  noisy  quarrel,  or  a  tumult  commenced  by 
those  not  careful  about  the  peace  or  quietude  of  a  neigh- 
borhood or  of  any  person.  A  common  brawler,  at  com- 
mon law,  was  one  who  disturbed  the  peace  of  a  neighbor- 
hood by  fighting  or  quarrelling  and  was  indictable  for 
the  maintenance  of  a  nuisance,  or  for  being  a  nuisance 
himself.3  That  Warwick's  prediction  as  to  the  final  out- 
come of  the  "brawl"  that  day  started  between  the  factions 
of  York  and  Lancaster  is  in  the  nature  of  a  prophecy, 
is  abundantly  borne  out  by  the  history  of  the  long  wars 
between  these  two  houses. 


King  Edward  asks,  in  3'  Henry  VI:  "K.  Edw.  Is  proclamation 
made, — that,  who  finds  Edward,  shall  have  a  high  reward,  and 
he  his  life?"     (Act  V,  Scene  V.) 

1 1*  Henry  VI,  Act  II,  Scene  IV. 
2 1'  Henry  VI,  Act  II,  Scene  IV. 
'Wharton,  Law  Lexicon. 


FIRST  HENRY  THE  SIXTH.  299 

Sec.  269.    Outlaw.— 

"Win.     And  am  I  not  a  prelate  of  the  church? 
Glo.     Yes,  as  an  outlaw  in  a  castle  keeps, 
And  useth  it  to  patronage  his  theft."1 

An  outlaw,  in  English  law,  was  one  who  was  put  out 
of  the  protection  or  aid  of  the  law,  because  of  his  prior 
unlawful  course  in  life.2  At  common  law,  a  process  was 
sued  out  against  a  person  who  was  in  contempt  of  court, 
for  his  refusal  to  be  amenable  to  the  court  having  juris- 
diction of  his  person  or  his  property,  and  the  writ  of 
outlawry  issued  either  in  criminal  or  civil  cases.3 

Gloster  accuses  the  bishop  of  Winchester  of  being  in 
contempt  of  the  rightful  temporal  power  and  authority 
of  the  King  and  thus  in  a  position  of  outlawry  toward 
the  sovereign. 

The  Clown  is  made  to  say,  in  Titus  Andronicus: 

"CZo.    Why,  I  am  going  with  my  pigeons,  to  the  tribunal  plebs, 

to  take  up  a  matter  of  brawl,  betwixt  my  uncle  and  one  of  the 

emperial's  men."     (Act  IV,  Scene  III.) 

On  the  mutiny,  inspired  by  Iago,  Othello  observes: 
"Are  we  turn'd  Turks;  and  to  ourselves  do  that, 
Which  heaven  hath  forbid  the  Ottomites? 
For  Christian  shame,  put  by  this  barbarous  brawl."     (Act  II, 
Scene  III.) 

He  then  gives  direction  to  the  false  Iago: 
"Iago,  look  with  care,  about  the  town; 
And  silence  those  whom  this  vile  brawl  distracted."  (idem.) 

1  V  Henry  VI,  Act  III,  Scene  I. 

2  Bacon,  Abr.  Outlawry;  3  Bl.  Comm.  283,  284. 

3 Coke,  Litt.  128;  Bacon,  Abr.;  3  Bl.  Comm.  283.  Outlawry  in 
civil  cases,  in  the  United  States  is  unknown,  and  it  is  very  rare 
that  one  is  outlawed  in  a  criminal  case. 

Messala  tells  Brutus,  in  Julius  Caesar:  "That  by  proscription, 
and  bills  of  outlawry,  Octavius,  Antony  and  Lepidus,  have  put 
to  death  a  hundred  senators."     (Act  IV,  Scene  III.) 


300  THE   LAW   IN  SHAKESPEARE. 

Sec.  270.    Contract.— 

"K.  Hen.     0  loving  uncle,  kind  duke  of  Gloster, 
How  joyful  am  I  made  by  this  contract."1 

A  contract,  in  law,  is  an  agreement,  upon  sufficient 
consideration  to  do  or  not  to  do,  some  particular  thing.2 
Contracts  are  either  express  or  implied,  and  an  express 
contract  is  one  where  the  details  and  terms  of  the  agree- 
ment are  fully  uttered  and  agreed  to,3  while  an  implied 
contract  is  one  left  to  the  intention  of  the  parties,  or 
such  a  contract  as  reason  and  justice  dictate  and  which, 
therefore,  the  law  presumes  that  every  man  undertakes 
to  perform.4 

The  contract  referred  to  here  was  rather  in  the  nature 
of  an  implied  contract,  than  one  expressed  in  its  terms, 
and  of  course  as  keeping  the  peace  would  only  be  the 
performance  of  their  legal  duty,  this  would  be  an  object 
imposed  upon  the  parties  by  law.  But  the  mutual  prom- 
ises by  the  duke  of  Gloster  and  the  bishop  of  Winchester 
for  themselves  and  their  followers,  to  desist  from  further 
disturbances  and  keep  the  peace,  and  drop  all  past  differ- 
ences and  dissensions  between  them,  was  in  the  nature 
of  a  contract,  or  agreement  and  the  ratification  of  such 
an  undertaking  gave  the  king  much  pleasure. 

1 1'  Henry  VI,  Act  III,  Scene  I. 

2Lawson  on  Contracts  (2'  ed.),  sec.  1;  1  Parsons  Con.  sec.  9; 
2  Bl.  Coram.  446;  2  Kent's  Comm.  449;  Story,  Con.  sec.  1. 

8  2  Bl.  Comm.  443. 

4  2  Bl.  Comm.  443;  1  Parson's  Com.  4;  Lawson,  Con. (2d  ed.) 
sec.  3. 

King  Henry  VI,  replying  to  the  proffered  offer  of  the  daughter 
of  the  earl  of  Armagnac,  in  marriage,  said:  "K.  Hen.  In  argu- 
ment and  proof  of  which  contract,  hear  her  this  jewel,  pledge  of 
my  affection."     (Act  V,  Scene  I.) 

In  urging  Charles  to  agree  to  the  terms  of  the  peace  imposed, 
in  1'  Henry  VI,  Reignier  said:  "Reig.  My  lord,  you  do  not  well, 
in  obstinacy,  To  cavil,  in  the  course  of  this  contract."  (Act  V, 
Scene  IV.) 


FIRST  HENRY  THE  SIXTH.  301 

Sec.  271.     Partners.— 

"Bur.   My  vows  are  equal  partners  with  thy  vows. 

Bed.     .     .     .     Here  will  I  sit,  before  the  walls  of  Rouen, 
And  will  be  partner  of  your  weal  or  woe."1 

Partners  are  those  who  enter  into  an  agreement  to  use 
their  labor,  skill,  or  means,  in  the  furtherance  of  some 
lawful  commerce  or  business,  under  an  understanding, 
express  or  implied  from  the  nature  of  the  enterprise,  that 
there  shall  be  community  of  the  profits  or  earnings  of  the 
undertaking.2  In  the  agreement  for  the  partnership, 
there  may  be  an  equal  or  unequal  distribution  of  the 
earnings  of  the  partnership,  according  to  the  amount  con- 
tributed by  each  of  the  partners,3  hence  Talbot  declares 
that  his  vows  will  be  "equal  partners"  with  those  of  his 
associate  in  arms,  clearly  noting  this  distinction,  in  lawT, 
between  one  who  shares  the  earnings  only  in  proportion 
to  his  contributions  and  one  who  shares  them  equally 
with  his  co-partners. 

Gloster  urges  the  King,  in  1'  Henry  VI:  "Olo.  .  .  .  You 
know,  my  lord,  your  highness  is  betroth'd,  Unto  another  lady 
of  esteem;  How  shall  we  then,  dispense  with  this  contract,  And 
not  deface  your  honor  with  reproach?"     (Act  V,  Scene  V.) 

Juliet  tells  Romeo,  in  declaring  her  love:  "Well,  do  not  swear: 
although  I  joy  in  thee,  I  have  no  joy  of  this  contract  to-night." 
Act  II,  Scene  II.) 

1 1'  Henry  VI,  Act  III,  Scene  II. 

2Collyer,  Part.  Sec.  2;   1  Lindley,  Part.,  sees.  1,  6;   Story,  Part 
sees.  23,  24. 
8  Ante  idem. 

Antony  tells  Caesar,  in  Antony  and  Cleopatra:     "Ant.    .    .    . 
I,  your  partner  in  the  cause,  'gainst  which  he  fought,  Could- not 
with  graceful  eyes,  attend  these  wars."     (Act  II,  Scene  II.) 
Tarquin  tells  the  poor  Lucrece: 
"That  done,  despitefully  I  mean  to  bear  thee 
Unto  the  base  bed  of  some  rascal  groom, 
To  be  thy  partner  in  this  shameful  doom."     (670,  672.) 
And  Lucrece  reflects  that  she  would  then  have 
"co-partners  in  my  pain."     (789.) 


802  THE  LAW  IN  SHAKESPEARE. 

Sec.  272.    Fighting  in  King's  palace  or  presence. — 

"Basset.     Villain,  thou  know'st  the  law  of  arms  is  such, 
That  who  so  draws  a  sword,  'tis  present  death, 
Or  else  this  blow  should  broach  thy  dearest  blood."1 

Basset  here  refers  to  the  ancient  law,  which  obtained 
in  England,  prior  to  the  Norman  Conquest,  whereby  fight- 
ing in  the  king's  palace,  or  in  his  presence,  or  in  that  of 
his  judges,  was  made  a  felony  punishable  by  death.2  By 
statute  (33  Henry  VIII,  c.  12)  bloodshed  and  malicious 
strikings,  whereby  blood  was  shed,  in  the  palaces  or 
houses  of  the  king,  while  he  was  personally  resident  there, 
was  made  a  felony,  for  which  the  offender  should  have  his 
right  hand  struck  off  and  for  declaration  of  the  solemn 
circumstance  of  this  execution,  the  statute  assigned  dif- 
ferent functions  to  the  different  members  of  the  king's 
household,  in  order  to  terrorize  the  populace  and  pre- 
vent such  grievous  offenses.3 

Sec.  273.    Quid  pro  quo. — 

"Suff.     Lady,  wherefore  talk  you  so? 

Mar.     I  cry  you  mercy,  'tis  but  quid  for  quo/'4 

Quid  pro  quo,  from  the  Latin,  meaning  an  equivalent, 
denotes,  in  law,  the  consideration  in  a  contract,  for  which 
something  is  to  be  done  or  not  done,  by  the  promisor.5  Of 
course  the  terms  are  used  by  Margaret  in  a  jocular  or 
humorous  manner. 


1 1'  Henry  VI,  Act  III,  Scene  IV. 

2 1  Reeve's  History  Eng.  Law,  198. 

8 IV  Reeve's  History  Eng.  Law,  p.  453;  Rolfe's  1'  Henry  VI,  p. 
202,  notes. 

This  barbarous  judgment,  by  the  lopping  off  of  the  right  hand, 
we  are  told,  was  actually  executed  upon  Sir  Edmund  Knivet, 
during  the  reign  of  Henry  VIII,  for  striking  a  man,  at  Green- 
wich, the  King  then  being  there.  (IV  Reeve's  History  Eng.  Law, 
p.  454).  But  this  statute  which  imposed  this  punishment  was 
repealed  by  9'  Geo.  IV,  c.  31.    idem. 

4  V  Henry  VI,  Act  V,  Scene  III. 

5  Coke  Litt.  47b. 


FIRST  HENRY  THE  SIXTH.  303 

Sec.  274.    Condemned  woman's  privilege  of  pregnancy.— 

"Puc.     Will  nothing  turn  your  unrelenting  hearts? — 
Then,  Joan,  discover  thine  infirmity; 
That  warranteth  by  law  to  be  thy  privilege. — 
I  am  with  child,  ye  bloody  homicides: 
Murder  not  then  the  fruit  within  my  womb, 
Although  ye  hale  me  to  a  violent  death."1 

Joan  of  Arc  here  claimed  the  common  law  privilege, 
which  was  extended  in  all  cases,  to  a  pregnant  woman, 
condemned  to  death,  provided  she  was  found  to  be  with 
"quick  child,"  of  having  her  execution  delayed  until  the 
birth  of  her  child.  When  this  plea  was  made  prior  to 
execution,  the  court  directed  a  jury  of  twelve  matrons, 
or  discreet  women,  to  ascertain  the  fact  if  the  condemned 
woman  was  "quick  with  child,"  and  if  the  verdict  was 
that  she  was  with  quick  child,  the  execution  was  stayed 
from  term  to  term  of  court,  until  the  child  was  born,  or 
the  woman  was  found  to  have  been  pretending  preg- 
nancy.2 By  the  English  common  law,  however,  the  plea 
would  fail,  if  it  was  not  found  that  the  child  had  quick- 
ened, for  until  this  period  the  foetus  was  not  believed  to 
be  alive.3  But  by  the  law  of  Scotland  and  of  France,  it 
was  held  to  be  a  good  plea,  when  the  woman  was  found 
to  be  pregnant,  whether  the  child  had  quickened  or  not, 
and  hence,  the  plea  of  the  Maid  of  Orleans,  in  this  in- 
stance, if  she  was  really  pregnant,  ought  to  have  stayed 
her  execution,  if  the  law  of  the  realm  was  accorded  her.4 


1  V  Henry  VI,  Act  V,  Scene  IV. 

2  4  Sh.  Bl.  Comm.  394,  395;  1  Bishop,  Cr.  Proc,  sees.  1322,  1324. 
8  Reg  vs.  Baynton,  14  How.  St.  Tr.  597,  634. 

4Bouvier's  Law  Dictionary;   1  Chitty's  Cr.  Law,  760. 

Chitty  states  that  while  the  common  law  did  not  give  a  stay, 
unless  the  child  had  quickened,  the  matrons,  because  of  their 
"gentleness  of  sex,"  usually  found  that  the  child  had  quickened 
and  thus  avoided  the  execution  of  one  of  their  sex,  at  their 
hands.  1  Chitty,  Cr.  Law,  760;  3  Inst.  17;  4  Bl.  Comm.  695;  1 
Hale,  P.  C.  368,  369. 


304  THE  LAW  IN  SHAKESPEARE. 

Sec.  275.    Compromise. — 

"York.     .     .     .     And,   now  the   matter  grows  to   com- 
promise, 
Stand'st  thou  aloof  upon  comparison."1 

A  compromise  is  an  agreement  between  two  or  more 
parties  as  a  settlement  of  matters  in  dispute  between 
them.2  Frequently  compromises  are  brought  about  by 
arbitrators,  with  authority  to  decide  what  shall  appear 
to  be  just  and  reasonable  between  the  parties,  in  order 
to  put  an  end  to  the  differences  of  which  they  are  made 
the  judges.3 

Of  course  in  negotiations  for  a  compromise,  if  either 
party  is  arbitrary,  or  not  willing  to  make  concessions  to 
the  other,  to  settle  the  disputed  matters,  then  no  compro- 
mise can  generally  be  procured  and  this  is  why  York 
suggests  to  the  French  Dauphin,  that  he  must  not  stand 
"aloof  upon  comparison,"  "now  the  matter  grows  to  com- 
promise." 

In  an  early  South  Carolina  case,  a  jury  of  matrons  stayed  the 
execution  of  a  pregnant  woman,  according  to  this  old  practice. 
State  vs.  Arden,  1  Bay,  487,  490. 

1 1'  Henry  VI,  Act  V,  Scene  IV. 
2Bouvier's  Law  Dictionary. 
3  ante  idem. 


CHAPTER  XXII. 

"SECOND  PART  OF  KING  HENRY  THE  SIXTH." 

Sec.  276.  Articles  of  agreement. 

277.  Bargain  and  sale. 

278.  Margery  Jourdemayn's  case. 

279.  Pursuivant. 

280.  Bondman. 

281.  Open  to  the  Law. 

282.  "Rigour  of  the  Law." 

283.  To  apprehend  in  the  fact. 

284.  York's  title  to  the  Crown  of  England. 

285.  Duchess'  of  Gloster's  sentence. 

286.  Justification  for  one  condemned  by  Law. 

287.  Contrary  to  form  of  Law. 

288.  Levying  sums  of  money. 

289.  Taking  bribes. 

290.  Taxes — Restitution. 

291.  Bearing  false  witness — Perjury. 

292.  Executioner. 

293.  Land  held  in  common. 

294.  Sales  of  meat  during  Lent. 

295.  Source  of  Law — Biting  statutes. 

296.  Jurisdiction   regal. 

297.  Benefit  of  Clergy. 

298.  Determining  causes. 

299.  Maiden  rent. 

300.  Bail. 

Sec.  276.    Articles  of  agreement. — 

"Suff.     My  lord  protector,  so  it  please  your  grace, 
Here  are  the  articles  of  contracted  peace, 
Between  our  sovereign  and  the  French  king,  Charles, 
For  eighteen  months,  concluded  by  consent."1 

Articles  are  the  divisions  of  a  written  or  printed  docu- 
ment or  agreement  and  in  the  sense  in  which  the  term 
is  here  used  it  is  the  specification  of  the  distinct  matters 


1  2'  Henry  VI,  Act  I,  Scene  I. 

(305) 


306  THE  LAW  IN  SHAKESPEARE. 

agreed  upon.1  The  fundamental  idea  of  an  article  is  that 
of  an  object  comprising  some  part  of  a  complex  whole, 
such  as  the  statement  of  the  several  undertakings  of  the 
several  parties  to  an  agreement,  covering  the  different 
contingencies  of  the  terms  of  the  contract.2 

The  contract  here  contains  the  legal  essentials  of  a 
valid  agreement  commencing  with  the  names  and  desig- 
nation of  the  parties,  the  subject  matter  of  the  agreement, 
containing  the  essentials  of  the  undertakings  of  each 
party;  the  covenants  to  be  performed  and  the  signatures 
of  the  parties  to  the  agreement.3 

1Bouvier's  Law  Dictionary. 

2  Ante  idem. 

3  The  Poet,  however,  described  the  person  of  the  agent,  rather 
than  the  principal  for  whom  the  contract  is  made.  In  this  form, 
it  is  but  the  agreement  of  Suffolk,  as  the  additions  after  his 
name,  in  law,  would  be  but  mere  descriptio  personae.  An  agree- 
ment should  be  executed  by  an  agent  in  the  name  of  his  princi- 
pal, by  himself,  as  agent,  rather  than  in  the  name  of  the  agent, 
as  a  party  thereto. 

Gloster  reads  this  peace  agreement,  as  follows:  "Glo.  Imprimis, 
It  is  agreed  between  the  French  King,  Charles,  and  William  de 
la  Poole,  marquis  of  Suffolk,  ambassador  for  Henry,  King  of 
England,  that  the  said  Henry  shall  espouse  the  Lady  Margaret," 
etc.  .  .  .  ''Item.  It  is  further  agreed  between  them"  etc. 
2'  Henry  VI,  Act  I,  Scene  I. 

The  earl  of  Westmoreland  said,  on  Henry's  attempted  dispo- 
sition of  the  crown,  in  3'  Henry  VI:  "West.  I  cannot  stay  to  hear 
these  articles."     (Act  I,  Scene  I.) 

Speaking  of  the  form  of  the  French  treaty,  Buckingham  said 
of  Cardinal  Wolsey:  "Buck.  Pray,  give  me  favor,  sir.  This  cun- 
ning cardinal,  The  article  o'  the  combination  drew,  as  himself 
plead'd."       (Henry  VIII,  Act  I,  Scene  I.) 

The  Earl  of  Surrey  tells  the  duke  of  Norfolk,  when  they  are 
presenting  their  charges  against  Cardinal  Wolsey,  in  King  Henry 
VIII:  "Sur.  Produce  the  grand  sum  of  his  sins,  the  articles  col- 
lected from  his  life."     (Act  III,  Scene  II.) 

In  Coriolanus,  Cominius  said:  "Com.  .  .  .  send  us  to  Rome, 
the  best,  with  whom  we  may  articulate,  for  their  own  good,  and 


SECOND  HENRY  THE  SIXTH.  307 

Sec.  277.    Bargain  and  sale.— 

"York.     .     .     .     So  York  must  sit,  and  fret,  and  bite  his 
tongue, 
While  his  own  lands  are  bargained  for  and  sold."1 

A  contract  of  bargain  and  sale,  is  one  whereby  the 
owner  of  land,  for  a  valuable  consideration,  agrees  to  sell 
to  the  bargainee,  whereupon  a  use  arises  in  favor  of  the 
latter,  to  whom  the  seisin  is  transferred  by  the  statute  of 
uses.2  In  other  words,  the  statute  of  uses  annexed  the 
seisin  to  such  an  agreement,  whereby  a  complete  estate 
became  vested  in  the  bargainee.3  All  things  for  the  most 
part  which  may  be  granted  by  any  deed,  may  be  granted 
by  bargain  and  sale  and  an  estate  may  be  created  in  fee, 
for  life  or  for  years,  by  such  a  deed.4  The  proper  and 
technical  words  to  denote  a  bargain  and  sale  are  "bargain 
and  sell,"  as  used  by  the  Poet  here,  but  from  the  lan- 
guage of  the  verse  quoted,  an  involuntary  alienation  is 
contemplated  by  York,  which  could  only  occur  after  the 
title  was  divested  by  confiscation  or  other  means,  before 
the  bargain  and  sale  occurred.5 


ours."     This  means  he  would  enter  into  articles  with  him.     (Act 
I,  Scene  IX.) 

Antiochus  tells  Pericles,  Prince  of  Tyre,  when  he  sees  that  he 

has  discovered  his  sin: 

"Ant.    Prince  Pericles,  touch  not,  upon  thy  life, 
For  that's  an  article  within  our  law, 
As  dangerous  as  the  rest."     (Act  I,  Scene  I.) 

1  2'  Henry  VI,  Act  I,  Scene  I. 

2Tiedeman,  on  R.  P.  (3'  ed.)  sees.  542,  543. 

8  Coke,  Litt.  40b;  2  Bl.  Comm.  338. 

4  2  Coke,  54. 

6  In  other  words,  this  deed  is  a  contract,  to  which  the  land 
owner  would  have  to  assent.  Tiedeman,  on  R.  P.  (3'  ed.)  sec. 
543. 


308  THE  LAW  IN  SHAKESPEARE. 

Sec.  278.    Margery  Jourdemayn's  case. — 

"Duchess.     What   say'st  thou,   man?   hast  thou   as  yet 
conferr'd 
With  Margery  Jourdain,  the  cunning  witch, 
With  Roger  Bolingbroke,  the  conjuror? 
And  will  they  undertake  to  do  me  good?"1 

These  lines  refer  to  a  case  tried  during  the  tenth  year 
of  King  Henry  VI,  wherein  Margery  Jourdemayn,  John 
Virley,  clerk,  and  friar  John  Ashwell  were,  on  the  9th  of 
May,  1433,  brought  from  Windsor  by  the  constable  and 
committed  for  sorcery,  before  the  Council  at  Westminster.2 
Afterwards,  by  order  of  the  Council,  they  were  delivered 
to  the  custody  of  the  Lord  Chancellor  of  the  Kingdom, 
but  the  woman  was  afterwards  burned  at  Smithfield,  as 
stated  at  the  time  in  the  chronicles,  as  well  as  in  the  play.8 

Sec.  279.    Pursuivant.— 

"Suff.  .  .  .  Take  this  fellow  in,  and  send  for  his 
master  "with  a  pursuivant  presently: — we'll  hear  more 
of  your  matter  before  the  king."4 

A  pursuivant,  from  the  French,  poursuivant,  meaning 
a  follower,  was  the  third  and  lowest  order  of  heraldic  offi- 
cers. This  office  was  rather  a  probationary  one,  through 
which  heralds  or  kings-at-arms,  had  to  pass.5  In  ancient 
times,  any  nobleman  of  great  prowess  could  name  his  own 
pursuivant  and  the  dukes  of  Norfolk,  Northumberland 
and  the  earl  of  Salisbury,  each  had  his  own  pursuivant. 

*2'  Henry  VI,  Act  I,  Scene  II. 
2Rolfe's  2'  Henry  VI,  p.   187,  notes. 

'Rymer's  Faedera,  p.  166.  See,  also,  III  Reeve's  History  Eng. 
Law,  pp.  453,  551. 

And  for  history  of  the  statutes  against  sorcery  and  witchcraft, 
even  as  late  as  the  reign  of  Queen  Elizabeth,  see  V  Reeve's  His- 
tory Eng.  Law,  p.  349. 

*  2'  Henry  VI,  Act  I,  Scene  III. 
6  Hume's   History   of   England. 


SECOND  HENRY  THE  SIXTH.  309 

The  costume  of  a  pursuivant  of  the  king  was  a  surcoat, 
embroidered  with  the  royal  arms,  and  worn  with  one 
sleeve  hanging  down  in  front,  and  another  behind  the 
back,  but  of  more  recent  years  the  costume  of  such  officers 
is  like  that  of  a  herald. 

Sec.  280.    Bondman.— 

"Suff.     .     .     .     And   all   the  peers  and  nobles   of  the 
realm, 
Have  been  as  bondmen  to  thy  sovereignty."1 

Bondman  is  a  term  which  has  not"  obtained  a  strictly 
juridical  use,  distinct  from  the  vernacular,  but  it  is  gen- 
erally used  to  indicate  one  compelled  to  render  personal 
servitude  and  it  is  not  to  be  used  in  the  same  sense  as  the 
word  slave.  A  slave  is  an  object  of  property  and  is  pos- 
sessed and  owned  as  a  chattel  or  thing,  while  a  bondman,, 
although  standing  in  such  relation  to  the  party  entitled 
to  his  services,  possesses  otherwise,  such  legal  rights  as  any 

There  are  four  pursuivants  belonging  to  the  English  College  of 
Arms:  Rouge  Croix,  the  oldest,  so  named  from  the  cross  of  St. 
George;  Blue  Mantle,  instituted  either  by  Edward  III,  or  Henry 
V,  and  named  from  the  color  of  the  Order  of  the  Garter;  Rouge 
Dragon,  named  from  Henry  VII's  dexter  supporter,  a  red  dragon, 
and  Portcullis,  named  from  a  badge  of  the  same  king. 

A  Pursuivant  and  Lord  Hastings,  have  the  following  colloquy, 
in  King  Richard  III: 

"Hast.  Gramercy,  fellow:  There,  drink  that  for  me.  (Throw- 
ing him   his  purse.) 

Purs.     I  thank  your  honour."     (Act  III,  Scene  II.) 

King  Richard  bids  Ratcliff,  in  Richard  III:  "K.  Rich.  Send 
out  a  pursuivant  at  arms  to  Stanley's  regiment."  (Act  V, 
Scene  III.) 

Doctor  Butts  said,  in  King  Henry  VIII,  speaking  of  the  treat- 
ment accorded  Cranmer,  by  the  peers,  before  his  trial:  "Butts. 
There,  my  lord,  The  high  promotion  of  his  grace,  of  Canterbury; 
Who  holds  his  state  at  door  'mongst  pursuivants,  pages,  and 
footboys."     (Act  V,  Scene  II.) 

1  2'  Henry  VI,  Act  I,  Scene  III. 


310  THE  LAW  IN  SHAKESPEARE. 

individual  may  possess,  in  law  and  he  does  not  occupy  a 
mere  property  status.1  The  Hebrews,  for  instance,  held 
the  people  of  other  nations  as  slaves,  possessing  the  atti- 
tude of  mere  property;  but  those  of  their  own  nation, 
under  the  obligation  to  serve,  were  rather  held  as  bond- 
men, possessing  certain  legal  rights,  as  persons,  not  as 
property.2  This  was  rather  the  legal  attitude  of  the 
villeins,  under  the  serfdom  which  existed  in  feudal  times, 
and  regardless  of  the  nature  of  his  service,  the  villein, 
under  English  law,  was  a  legal  person,  capable  of  legal 
rights.3  The  term*  is  here  used,  to  indicate  persons  in  one 
degree  above  mere  slaves,  or  serfs,  but  compelled  to  render 
service  as  the  sovereign  might  demand,  or,  in  this  respect, 
to  occupy  the  attitude  of  "bondmen." 

Sec.  281.    Open  to  the  law.— 

"Glo.     m    .     .As  for  your  spiteful  false  objections, 
Prove  them  and  I  lie  open  to  the  law."4 

Gloster  here  demands  a  trial  and  admits,  that,  upon  the 
proof  of  the  several  offenses  charged  against  him,  he  would 
be  amenable  to  the  law.  In  other  words,  he  asks  to  put 
his  accusers  to  their  proof  and  demands  the  evidence  of 
his  guilt,  admitting  that  if  the  things  charged  against  him, 
shall  be  established,  he  has  violated  the  law  and  is  amena- 
ble for  his  offenses.  The  objections  or  charges  are  not 
admitted,  but  are  claimed  to  be  "spiteful  false  objections," 
but  if  true,  then  the  speaker  admits,  "I  lie  open  to  the 
law." 


1 1  Hurd,  Law  of  Freedom  and  Bondage,  chs.  4,  5. 

2  Cobb's  Hist.  Sketch,  Ch.  1. 

31  Hurd's  Law  of  Freedom   &  Bondage,  chs.  4,   5. 

Casca  said  in  Julius  Caesar:  "Casa.  So  every  bondman  in 
his  own  hand  bears  the  power  to  cancel  his  captivity."  (Act 
I,  Scene  II.) 

4  2'  Henry  VI,  Act  I,  Scene  III. 


SECOND  HENRY  THE  SIXTH.  311 

Sec.  282.    " Rigour  of  the  law."— 

"York.     ...     I  do  beseech  your  majesty, 
Let  him  have  all  the  rigour  of  the  law."1 

Rigour  is  here  used  in  the  sense  of  exactness,  strictness, 
severity  or  inflexibility.  In  other  words,  York  demands 
of  the  King  that  the  law,  in  all  its  strictness  shall  be 
enforced,  without  compassion  or  indulgence.  He  de- 
mands that  the  King  shall  be  firm  and  rigid  in  the 
enforcement  of  the  law;  that  no  mercy  be  shown,  but 
that  the  most  rugged  sternness,  or  relentless  severity  shall 
be  employed  in  the  enforcement  of  the  law.2 

Sec.  283.    To  apprehend  in  the  fact. — 

"Buck.     .     .     .     The   ringleader   and   head   of   all   this 
rout, — 
Have  practic'd  dangerously  against  your  state, 
Dealing  with  witches  and  with  conjurors; 
Whom  we  have  apprehended  in  the  fact."3 

To  be  "apprehended  in  the  fact,"  is  to  be  arrested  on  a 
criminal  charge,  while  in  the  commission  of  the  crime.4 
Apprehend  is  used  in  speaking  of  arrests  on  criminal 
charges,  while  arrest  is  used  in  speaking  of  civil  offenses, 
not  criminal  in  nature.  In  other  words,  one  may  make 
an  arrest  on  civil  process,  while  one  can  only  be  appre- 
hended on  a  criminal  warrant,5  so  the  correct  legal  term 
is  used  by  the  Poet.  Factum,  is  a  culpable  or  criminal  act, 

1  2'  Henry  VI,  Act  I,  Scene  III. 

2  The  same  term  is  used,  in  a  different  meaning,  by  the  good 
queen  Hermione,  at  her  trial,  when  she  asks  not  mere  stern- 
ness or  severity  and  says: 

"If  I  shall  be  condemn'd 
Upon  surmises,     ...     I  tell  you, 
'Tis  rigour  and  not  law." 

(Winter's  Tale,  Act  III,  Scene  II.) 

8  2'  Henry  VI,  Act  II,  Scene  I. 

4  Bouvier's  Law  Dictionary. 

•Bacon's  Abr.;  Bouvier's  Law  Dictionary. 


312  THE  LAW  IN  SHAKESPEARE. 

or  one  not  lawful  in  itself,1  so  to  be  apprehended,  in  the 
fact,  is  to  be  taken  "red  handed,"  or  while  in  the  com- 
mission of  the  crime. 

Buckingham  caught  the  Duchess  of  Gloster,  in  the 
presence  of  the  witches  and  while  enquiring  about  the 
several  treasonable*  matters  charged  and  thus,  she  was 
taken  or  "apprehended  in  the.  fact." 

Sec.  284.    York's  title  to  the  crown  of  England. — 

"York.     .     .     .     Edward  the  Third,  my  lords,  had  seven 
sons; 
The  first,  Edward  the  Black  Prince,  prince  of  Wales ; 
The  second,  William,  of  Hatfield;  and  the  third, 
Lionel,  duke  of  Clarence;  next  to  whom, 
Was  John  of  Gaunt,  the  duke  of  Lancaster: 
The  fifth  was  Edmund  Langley,  duke  of  York ; 

*2  Bl.  Comm.  293,  295. 

Paris  attempts  to  apprehend  Romeo,  who  is  entering  the  tomb 
of  the  Capulets,  in  Romeo  and  Juliet,  as  follows: 
"Par.    Stop  thy  unhallow'd  toil,  vile  Montague; 

Can  vengeance  be  pursu'd  further  than  death? 
Condemn'd  villain,  I  do  apprehend  thee: 
Obey  and  go  with  me;   for  thou  must  die.' 

Apprehend,  in  its  strictest  sense,  applies  to  taking  one  into 
custody,  in  a  criminal  case.  An  arrest  could  be  made,  at  com- 
mon law,  by  a  private  person,  for  a  crime  committed  in  his  pres- 
ence, and  especially  as  here,  where  he  was  taken  in  the  act. 
Paris  apprehends  Romeo,  in  the  act  of  breaking  the  enclosure  to 
the  Capulet  tomb;  he  demands  that  he  stop  his  "unhallow'd  toil;" 
Romeo  has  also  been  adjudged  guilty  of  Tybalt's  murder  and 
banished,  not  to  return,  on  pain  of  death,  so  Paris,  as  he  had  a 
legal  right  to  do,  arrests  him,  and  assures  him  he  must  now  pay 
the  penalty  of  violating  the  Prince's  judgment,  when  he  was 
banish'd.     (Act  V,  Scene  III.) 

See  Bouvier's  Law  Dictionary. 

Brabantio,  in  Othello,  gives  the  following  direction:  "Some 
one  way,  some  another. — Do  you  know  where  we  may  apprehend 
her  and  the  Moor?"     CAct  I,  Scene  I.) 

And  when  he  comes  up  with  Othello,  he  addresses  him  as  fol- 
lows: "Bra.  ...  I  therefore  apprehend  and  do  attach  thee," 
etc.     (Act  I,  Scene  II.) 


SECOND  HENRY  THE  SIXTH.  313 

The  sixth,  was  Thomas  Woodstock,  duke  of  Gloster; 
William  of  Windsor  was  the  seventh,  and  last. 
Edward,  the  Black  Prince,  died  before  his  father; 
And  left  behind  him,  Richard,  his  only  son, 
Who,  after  Edward  the  Third's  death,  reign'd  as  king; 
Till  Henry  Bolingbroke,   duke  of  Lancaster, 
The  eldest  son  and  heir  of  John  of  Gaunt, 
Crown'd  by  the  name  of  Henry  the  Fourth, 
Seiz'd  on  the  realm ;  depos'd  the  rightful  king ; 
Sent  his  poor  queen  to  France,  from  whence  she  came, 
And  him  to  Pomf ret ;  where,  as  all  you  know, 
Harmless  Richard  was  murder'd  traitorously. 

War.     Father,  the  duke  hath  told  the  truth ; 
Thus  got  the  house  of  Lancaster  the  crown. 

York.     Which  now  they  hold  by  force  and  not  by  right; 
For  Richard,  the  first  son's  heir,  being  dead, 
The  issue  of  the  next  son  should  have  reign'd. 

Sal.     But  William  of  Hatfield  died  without  an  heir. 

York.     The  third  son,  duke  of  Clarence  (from  whose  line 
I  claim  the  crown,)  had  issue — Phillippe,  a  daughter, 
Who  married  Edmund  Mortimer,  earl  of  March : 
Edmund  had  issue — Roger,  earl  of  March: 
Roger  had  issue — Edmund,  Anne,  and  Eleanor. 

Sal.     This  Edmund,  in  the  reign  of  Bolingbroke, 
As  I  have  read,  laid  claim  unto  the  crown; 
And,  but  for  Owen  Glendower,  had  been  king, 
Who  kept  him  in  captivity  till  he  died. 
But,  to  the  rest. 

York.     His  eldest  sister,  Anne, 

My  mother,  being  heir  unto  the  crown, 
Married  Richard  earl  of  Cambridge ;  who  was  son 
To  Edmund  Langley,  Edward  the  Third's  fifth  son. 
By  her  I  claim  the  kingdom :  she  was  heir 
To  Roger,  earl  of  March;  who  was  the  son, 
Of  Edmund  Mortimer;  who  married  Phillippe, 
Sole  daughter  unto  Lionel,  duke  of  Clarence; 
So,  if  the  issue  of  the  elder  son, 
Succeed  before  the  younger,  I  am  king. 

War.     What  plain  proceedings  are  more  plain  than  this? 
Henry  doth  claim  the  crown  from  John  of  Gaunt, 
The  fourth  son;  York  claims  it  from  the  third. 
Till  Lionel's  issue  fails,  his  should  not  reign."1 


2'  Henry  VI,  Act  II,  Scene  II. 


314  THE  LAW  IN  SHAKESPEARE. 

This  descent  of  the  Duke  of  York  is,  as  history  gives 
it,  and  according  to  the  English  law,  was  a  better  title 
to  the  crown  of  England  than  that  of  the  house  of  Lan- 
caster. Richard  of  York  was  the  son  of  the  earl  of 
Cambridge,  beheaded  by  Henry  the  Fifth  for  asserting 
his  claim  to  the  crown;  his  mother,  Anne,  the  heiress  of 
the  Mortimers,  and  thus  his  title  to  the  crown,  as  the 
descendant  of  the  third  son  of  Edward  the  Third,  Lionel, 
of  Clarence,  was  stronger,  in  law,  than  that  of  Henry  VI, 
a  descendant  of  John  of  Gaunt,  the  fourth  son.1  York 
was  the  issue  of  the  elder  son,  and  since,  in  law,  such 
issue  would  succeed,  before  that  of  the  younger  son,  as  the 
Poet  presents  it,  his  claim  was  the  stronger  to  the  crown.2 

Sec.  285.    Duchess  of  Gloster's  sentence. — 

"K.  Hen.     Stand  forth,  dame  Eleanor  Cobham,  Gloster's 
wife ; 
In  sight  of  God,  and  us,  your  guilt  is  great; 
Receive  the  sentence  of  the  law,  for  sins 
Such  as  by  God's  book,  are  adjudg'd  to  death. 


You,  madam,  for  you  are  more  nobly  born, 
Despoiled  of  your  honor  in  your  life, 
Shall,  after  three  days  open  penance  done, 
Live  in  your  country  here,  in  banishment, 
With  sir  John  Stanley,  in  the  Isle  of  Man."3 

The  usual  practice  of  having  the  prisoner  "stand  forth," 
to  receive  the  sentence,  is  here  adopted.  Like  Grotius,4 
the  Poet  here  makes  the  King  conclude  that  capital  pun- 
ishment, in  cases  of  treason  and  murder,  are  not  only 
lawful,  under  the  divine  law,  but  indispensable  to  restrain 

1  r  Greene's  England,  pp.  561,  564. 

a  The  right  of  primogeniture,  or  the  superior  claim  of  the  elder 
son,  has  been  recognized,  in  England,  ever  since  the  reign  of 
Henry  II.     I  Reeve's  History  Eng.  Law,  pp.  254,  255. 

3  2'  Henry  VI,  Act  II,    Scene   III. 

*  De  Jure  Belli,  b.  2,  c.  20. 


SECOND  HENRY  THE  SIXTH.  315 

the  audaciousness  of  guilt,  as  the  Scripture  recognizes  that 
"all  that  a  man  hath,  will  he  give  for  his  life." 

The  King  assumes  the  attitude  of  the  Judge  pronounc- 
ing sentence — which  is  the  judgment  or  judicial  declara- 
tion of  the  court  assessing  the  prisoners  punishment — when 
he  tells  the  Duchess  to  "receive  the  sentence  of  the  law," 
but  of  course  the  evidence  of  the  Duchess'  guilt  is  not  estab- 
lished as  it  should  have  been,  in  a  court  of  justice,  nor 
is  the  offense  one  in  magnitude  sufficient  to  constitute 
treason,  had  she  been  accorded  a  fair  trial. 

Sec.  286.    Justification  for  one  condemned  by  law. — 

"Glo.     Eleonor,  the  law,  thou  seest,  hath  judged  thee; 
I  cannot  justify  whom  the  law  condemns."1 

Gioster  here  bows  in  humble  submission  to  the  decree 
of  the  law,  in  pronouncing  punishment  upon  his  wife. 
These  lines  show  a  beautiful  respect  for  the  majesty  and 
might  of  law,  in  the  abstract  and  this  is  in  keeping  with 
all  the  references  which  his  characters  show  to  the  man- 
dates of  the  law,  after  the  law  is  applied  to  the  rights  of 
the  litigants  that  the  Poet  introduces.  Gioster  did  not 
assume  to  raise  his  right  to  judge  one  upon  whom  the 
law  had  already  judged,  or  claim  the  prerogative  to  usurp 
the  judgment  seat.  "The  law,  thou  see'st  hath  judged 
thee."     Not  the   King,   as  such,   but  the   King,   as   the 


Eleanor  Cobham,  the  mistress  of  Humphrey,  duke  of  Gioster, 
became  his  wife  in  1440  and  in  1441,  she  with  Roger  Boling- 
broke,  a  priest,  was  seized  for  conspiracy  in  a  plot  to  encompass 
the  King's  death,  by  sorcery.  On  Bolingbroke 's  arrest,  she  fled 
to  a  sanctuary,  at  Westminster.  "Her  judges  found  that  she 
had  made  a  waxen  image  of  the  King  and  slowly  melted  it  at  a 
fire,  a  process  which  was  held  to  account  for  Henry's  growing 
weakness,  both  of  mind  and  body.  The  Duchess  was  doomed  to 
penance  for  her  crime;  she  was  led  bare-headed  and  bare-footed 
in  a  penance-sheet  through  the  streets  of  London,  and  then 
thrown  into  prison  for  life."     1'  Greene's  England,  pp.  562,  563. 

1  2'  Henry  VI,  Act  II,  Scene  III. 


316  THE  LAW  IN   SHAKESPEARE. 

mouthpiece  of  the  law,  had  spoken  and  the  law  was 
higher  and  more  sacred  than  the  king,  even;  the  law, 
itself  had  pronounced  judgment.  No  man  should  ques- 
tion its  high  decrees. 

In  the  history  of  the  trial  by  battle,  when  females  were 
accused,  their  male  friends  or  relatives,  acting  as  justifi- 
catory or  compurgators,  by  their  oaths,  had  the  right  to 
justify  the  female  accused  and  to  stand  in  their  place, 
upon  their  oaths,  in  the  wager  of  the  law.1  But  this 
could  not  be  done,  after  judgment  pronounced,  so  Gloster 
here,  could  only  let  the  law  take  its  course  and  he  would 
not  "justify  whom  the  law  condemns." 

Sec.  287.    Contrary  to  form  of  law. — 

"Car.     Did  he  not,  contrary  to  form  of  law, 

Devise  strange  deaths  for  small  offences  done?"2 

The  Cardinal  here,  no  doubt,  refers  to  the  provision  of 
Magna  Charta,3  providing  that  amercement  of  a  freeman 
for  a  fault,  shall  be  proportionate  to  his  crime  and  not 
excessive.  Death,  "for  small  offenses  done,"  would  cer- 
tainly be  contrary  to  the  "form  of  law,"  at  the  time  to 
which  the  play  refers.4 

iHale,   Hist.  Com.  Law,  188;   3  Sh.  Bl.  Comm.  337. 

In  making  his  peace  with  the  world,  before  his  execution, 
Buckingham  said  in  King  Henry  VIII:  "Buck.  The  law  I  hear 
no  malice  for  my  death,  It  has  done,  upon  the  premises,  but  jus- 
tice."    (Act  II,  Scene  I.) 

2  2'  Henry  VI,  Act  III,  Scene  1. 

3  Magna  Charta,  C.  C.  14,  29. 

4  This  repository  of  the  rights  of  Englishmen  was  wrung  from 
King  John,  by  his  barons,  on  the  19th  of  June,  1215,  on  the  little 
island  in  the  Thames,  within  the  county  of  Buckinghamshire, 
which  is  still  called  Magna  Charta  Island.  Coke,  2'  Inst.;  4  Sh. 
Bl.  Comm.  423;   Bouvier's  Law  Dictionary. 

For  history  of  Magna  Charta,  and  the  details  and  scope  of  Its 
different  provisions,  the  reader  is  referred  to  the  excellent  article 
thereon,   in   II   Reeve's   History   Eng.   Law,    pp.    16-50. 


SECOND  HENRY  THE  SIXTH.  317 

Sec.  288.    Levying  sums  of  money. — 

"York.     And  did  he  not,  in  his  protectorship, 

Levy  great  sums  of  money  through  the  realm, 
For  soldiers  pay  in  France  and  never  sent  it."1 

Levy,  in  the  sense  in  which  it  is  here  used,  means  to 
raise,  i.  e.,  Gloster,  during  his  protectorship,  is  charged 
with  having  raised  money,  through  the  realm,  for  the  pay 
of  soldiers  and  then  not  sent  it  for  this  purpose.  Levy, 
in  law,  is  also  used  in  the  way  of  a  seizure,  as  where  money 
is  raised  from  a  seizure  of  property  for  a  lawful  purpose. 
The  term  always  contemplates  that  the  levy  is  made  by 
lawful  authority,  for  otherwise  the  payment  could  not  be 
enforced  by  the  levy.2 

Sec.  289.    Taking  bribes.— 

"York.     Tis  thought,  my  lord,  that  you  took  bribes  of 
France, 
And,  being  protector,  stayed  the  soldier's  pay; 
By  means  whereof,  his  highness  hath  lost  France."3 

The  giving  or  receiving  of  a  bribe,  is  the  acceptance 
or  offering  of  any  undue  reward,  by  or  to  any  person, 
whose  ordinary  profession  or  business  relates  to  the  ad- 
ministration of  justice,  in  order  to  influence  his  behavior 

Gloster  tells  the  Mayor,  in  King  Richard  III:  "Glo.  What: 
think  you,  we  are  Turks,  or  infidels?  Or  that  we  would,  against 
the  form  of  law,  Proceed  thus  rashly  in  the  villain's  death?" 
(Act  III,  Scene  V.) 

Menenius  tells  the  tribunes  of  the  people,  after  Coriolanus'  sum- 
mary condemnation:  "Men.  Give  me  leave,  I'll  go  to  him,  and 
undertake  to  bring  him  where  he  shall  answer,  by  a  lawful  form, 
(In  peace)  to  his  utmost  peril."     (Act  III,  Scene  I.) 

Cornwall,  in  King  Lear,  in  ordering  the  arrest  of  Gloster,  said: 
"Corn.     Pinion  him  like  a  thief,  bring  him  before  us. 
Though   well   we  may   not   pass   upon   his   life, 
Without  the  form  of  justice."     (Act  III,   Scene  VII.) 

*2*  Henry  VI,  Act  III,  Scene  I. 

2  2  Bl.  Comm.  357;    4  Bl.  Comm.  81. 

3  2'  Henry  VI,  Act  III,  Scene  I. 


318  THE  LAW  IN  SHAKESPEARE. 

in  office,  and  to  incline  him  to  act  contrary  to  his  duty 
and  the  known  rules  of  honesty  and  integrity.1 

For  Gloster  to  have  accepted  money  from  a  foreign 
nation,  at  war  with  his  own  country,  while  acting  as  pro- 
tector of  the  realm,  would  of  course  be  accepting  a  bribe, 
if  the  effect  or  object  was  to  incline  the  party  receiving 
the  money  to  fail  in  the  performance  of  his  duty  to  his 
own  country;  but  of  course  there  was  no  foundation,  in 
fact,  for  this  charge  against  the  good  Duke  Gloster,  but 
the  charge  was  a  mere  subterfuge,  as  the  Poet  makes  plain. 


^oke,  3'  Inst.,  147,  149;  4  Bl.  Comra.  139;  1  Russell,  Cr.  156. 
Replying  to  the  charges  against  him,  Gloster  said,  in  2'  Henry 
VI:     "Glo.     ...     I  never  robb'd  the  soldiers  of  their  pay,  Nor 
never  had  one  penny  bribe  from  France."     (Act  III,  Scene  I.) 

Apemantus,  the  philosopher,  in  Timon  of  Athens,  tells  Timon, 
when  he  offers  him  good  treatment:  "Apem.  If  I  should  be 
brib'd  too,  there  would  be  none  left  to  raill  upon  thee;  and  then 
thou  would'st  sin  the  faster."     (Act  I,  Scene  II.) 

Pleading  for  his  client,  in  Timon  of  Athens,  Alcibiades  said: 
"Alciab.  .  .  .  his  service  done  at  Lacedaemon  and  Byzantium, 
were  a  sufficient  briber  for  his  life."     (Act  III,  Scene  V.) 

Caius  Marcius  tells  Cominius,  in  Coriolanus:     "Mar.    I  thank 
you,  general,  But  cannot  make  my  heart  consent  to  take  a  bribe 
to  pay  my  sword."     (Act  I,  Scene  IX.) 
Cassius  tells  Brutus,  in  Julius  Caesar: 
"Cas.    That  you  have  wrong'd  me,  doth  appear  in  this; 
You  have  condemn'd  the  noted  Lucius  Pella, 
For  taking  bribes  here  of  the  Sardians."     (Act  IV,  Scene  III.) 
And  Brutus  replies: 
"Bru.    What,  shall  one  of  us, 

That  struck  the  foremost  man  in  all  this  world, 
But  for  supporting  robbers;    shall  we  now 
Contaminate  our  fingers  with  base  bribes?" 

(Act  IV,   Scene  III.) 
In  Cymbeline,  Belarius  observes: 
"0,  this  life 
Is  nobler  than  attending  for  a  check, 
Richer  than   doing  nothing  for  a  bribe, 
Prouder  than  rustling  in  unpaid-for  silk." 

(Act  III,  Scene  III.) 


SECOND  HENRY  THE  SIXTH. 


319 


Sec.  290.    Taxes. — Restitution. — 

"Glo.     .     .     .     No.     Many  a  pound  of  mine  own  proper 
store, 
Because  I  would  not  tax  the  needy  commons, 
Have  I  disbursed  to  the  garrisons, 
And  never  ask'd  for  restitution."1 

A  tax  is  a  contribution,  imposed  by  the  government, 
upon  the  individual  citizen  of  a  country,  for  the  service  of 
the  state.2  The  commons,  were  those  subjects  of  the  Eng- 
lish nation  who  were  not  noblemen.3  Restitution  is  a 
legal  term,  meaning  the  return  of  property  or  money  to 
one  lawfully  entitled  thereto.4 

Gloster  denies  that  he  levied  unusual  assessments  against 
the  subjects,  but  claims  that  he  waived  the  taxes  due  for 
the  wars  and  made  advancements  from  his  own  store,  to 
relieve  the  commons,  without  asking  that  it  be  returned 
to  him. 


Sec.  291.    Bearing  false  witness. — Perjury. — 

"Glo.     ...     I  shall  not  want  false  witness  to  condemn 
me, 
Nor  store  of  treasons  to  augment  my  guilt: 
The  ancient  proverb  will  be  well  effected, — 
A  staff  is  quickly  found  to  beat  a  dog."5 

A  witness  is  one  who  testifies  under  oath  to  that  which 
he  knows  to  be  true.6     A  false  witness,  of  course,  would 

In  Venus  and  Adonis,  it  is  said:  "And  therefore  hath  she 
bribed  the  Destinies,  To  cross  the  curious  workmanship  of 
nature."        (733,  734.) 

1  2'  Henry  VI,  Act  III,  Scene  I. 

21  BI.  Comm.  308;    1  Kent's  Comm.  254. 

3Bouvier's  Law  Dictionary. 

*  Ante  idem. 

King  Henry  VIII  asks  Cardinal  Wolsey:  "K.  Hen.  Taxation? 
Wherein?  and  what  taxation? — My  lord  cardinal,  you  that  are 
blam'd  for  it  alike  with  us,  know  you  of  this  taxation."  (Act  I, 
Scene  II.) 

s2'  Henry  VI,  Act  III,  Scene  I. 

6  Bacon,  Abr.  Evidence;  1  Greenleaf,  Evid.,  sees.  98,  328. 


320  THE. LAW  IN  SHAKESPEARE. 

be  one  testifying  to  facts  not  known  to  be  true,  or  to  those 
that  were  false. 

Gloster  knows  the  prejudice  obtaining  against  him  and 
advises  his  accusers  that  he  knows  they  will  invent  charges 
to  accomplish  his  overthrow  and  establish  his  guilt  by 
false  witnesses. 

Sec.  292.    Executioner. — 

"Car.     .     .     .     Say,  you  consent,  and  censure  well  the 
deed, 
And  I'll  provide  his  executioner, 
I  tender  so  the  safety  of  my  liege."1 

Executioner,  in  law,  is  the  one  who  puts  criminals  to 
death,  according  to  their  sentence.2  A  hangman,  in  the 
United  States,  is  such  a  person.  The  Cardinal,  upon  the 
excuse  of  his  solicitation  for  the  King,  agrees  to  provide 
Gloster's  "executioner,"  if  the  Queen  and  Suffolk  consent 
and  think  well  of  the  act. 

Sec.  293.    Land  held  in  common. — 

"Cade.  ...  I  will  make  it  felony  to  drink  small 
beer:  all  the  realm  shall  be  in  common,  and  in  Cheap- 
side  shall  my  palfry  go  to  grass."3 

The  Prince  tells  Richard,  in  3'  Henry  VI:  "Prince.  Lascivious 
Edward — and  thou  perjur'd  George,  ...  I  am  your  betters, 
traitors  that  ye  are."     (Act  V,  Scene  V.) 

12'  Henry  VI,  Act  III,  Scene  I. 

2  Bouvier's  Law  Dictionary. 

King  Henry  tells  Richard,  in  3'  Henry  VI:  "K.  Hen.  If  mur- 
dering innocents  be  executing,  Why,  then  thou  art  an  execu- 
tioner."    (Act  V,  Scene  VI.) 

Lady  Anne  tells  Richard,  in  King  Richard  III:  "Anne.  Arise, 
dissembler;  though  I  wish  thy  death,  I  will  not  be  thy  execu- 
tioner."    (Act  I,  Scene  II.) 

On  the  approach  of  the  murderers  of  Clarence,  in  King  Rich- 
ard III,  he  is  made  to  say:  "Glo.  .  .  .  But  soft,  here  come 
my  executioners."     (Act  I,  Scene  III.) 

3  2'  Henry  VI,  Act  IV,  Scene  II. 


SECOND  HENRY  THE  SIXTH.  321 

Land  held  in  common,  is  that  held  by  several  people  by 
several  and  distinct  titles,  and  not  by  joint  deed,  but 
whose  occupancy  of  the  land  is  in  common,  the  only 
unity  recognized  between  them  being  that  of  possession.1 
Tenants  in  common  have  a  right  to  share  in  the  profits 
of  the  estate,  according  to  the  extent  of  their  several  inter- 
ests and  all  are  jointly  entitled  to  the  possession  of  the 
land  so  held.2 

Cade's  promise  to  hold  the  realm  in  common,  was  of 
course  presented  for  the  purpose  of  securing  followers 
and  like  other  socialistic  propagandas,  was  contrary  to 
established  laws. 

Sec.  294.    Sales  of  meat  during  Lent.— 

"Cade.     They  fell  before  thee  like  sheep  and  oxen,  and 
thou  behavedst  thyself  as  if  thou  hadst  been  in  thine 
own   slaughter-house;   therefore   thus  will   I   reward 
thee:  the  Lent  shall  be  as  long  again  as  it  is,  and 
thou  shalt  have  a  license  to  kill  for  a  hundred  lack- 
ing one."3 
These  lines  no  doubt  refer  to  the  statutes  enacted  during 
the  reign  of  Queen  Elizabeth,  by  the  terms  of  which  butch- 
ers were  forbidden  under  penalty  of  the  statute,  to  sell 
meat,  during  Lent.4     It  was  provided,  however,  that  as  an 
exception  to  the  imposition  of  these  terms,  a  license  might 
issue  for  the  killing  and  sale  of  a  certain  number  of 
beasts,  nominally  for  the  sake  of  those  so  disabled  by  sick- 
ness that  they  could  not  do  without  it.5 
This  is  the  meaning  Cade  gives  the  statute,  as  he  con- 


1  Bacon,  Abr.,  Tenants  in  Common;  Coke,  Litt.  184b;  2  Bl. 
Comm.    179,    191;    4    Kent's    Comm.    358. 

2Tiedeman,  R.  P.   (3d  ed.),  sees.  178,  179. 

Cade  elsewhere  assures  his  followers:  "Cade.  And  hencefor- 
ward all  things  shall  be  in  common."  (2'  Henry  VI,  A.ct  IV, 
Scene  VII.) 

3  2'  Henry  VI,  Act  IV,  Scene  III. 

4V  Reeve's  History  Eng.  Law. 

6RolfeN?    r  Henry  VI,  p.  219,  notes. 


322  THE   LAW  IN   SHAKESPEARE. 

strues  it,  in  favor  of  Dick  the  butcher,  and  his  followers, 
for  he  will,  in  their  special  interest,  double  the  period  of 
his  disability,  but  set  at  naught  the  impositions  of  the 
law  and  give  him  and  them  free  reign  to  kill  as  they 
please. 

Sec.  295.    Source  of  law — Biting  statutes. — 

"Dick.  Only,  that  the  laws  of  England  may  come  out  of 
your  mouth. 

Cade.  I  have  thought  upon  it,  it  shall  be  so.  Away, 
burn  all  the  records  of  the  realm;  my  mouth  shall 
be  the  parliament  of  England. 

John.  Then  we  are  like  to  have  biting  statutes,  unless 
his  teeth  be  pulled  out."1 

As  law  is  but  a  rule  of  conduct  prescribed  by  the  su- 
preme power,2  in  England,  when  the  monarchy  was  abso- 
lute in  form,  the  king's  mouth  was  the  source  of  law, 
hence  Cade's  promise  is  not  so  far  from  the  legal  right 
he  would  have,  if  he  were  the  absolute  monarch  of  the 
realm,  to  make  laws  at  his  pleasure.  He  would  burn  all 
the  records  of  the  realm  and  his  will  be  substituted  for 
the  acts  and  regulations  of  parliament,  the  law  making 
body,  under  the  form  of  government  then  obtaining. 

Sec.  296.    Jurisdiction  regal. — 

"Cade.  Well,  he  shall  be  beheaded  for  it  ten  times. — Ah, 
thou  say,  thou  serge,  nay,  thou  buckram  lord:  now 
art  thou  within  point-blank  of  our  jurisdiction  regal."3 

Considering  the  relish  of  Englishmen  for  meat,  it  is  great 
wonder  that  the  Queen  had  any  hut  sick  and  disabled  citizens, 
during  the  Lenten  season  in  view  of  this  enforcement  of  the  stat- 
ute referred  to. 

1  2'  Henry  VI,  Act  IV,  Scene  VII. 

21  Stephen,  Comm.  24,  25. 

King  Edward  tells  Clarence,  in  3'  Henry  VI:  "K.  Edw.  Ay, 
what  of  that?  It  was  my  will  and  grant;  And,  for  this  once,  my 
will  shall  stand  for  law."     (Act  IV,  Scene  I.) 

3  2'  Henry  VI,  Act  IV,  Scene  VII. 


SECOND  HENRY  THE  SIXTH.  323 

Jurisdiction  is  the  power  to  hear  and  determine  a  cause.1 
Jurisdiction  attaches  over  the  person  and  over  the  subject- 
matter  of  an  offense  and  the  court  undertaking  to  deter- 
mine a  cause,  must  generally  be  vested  with  jurisdiction 
of  both  kinds.  And  territorial  jurisdiction  is  the  power 
to  determine  a  given  cause,  within  the  territory  wherein 
it  is  to  be  decided  or  tried.2 

Cade  gloats  over  Lord  Say,  in  these  lines,  and  boasts 
that  he  has  power  both  over  the  subject-matter  of  his 
offense  by  the  law  of  the  sovereignty  in  which  his  tribunal 
is  held,  and  also  jurisdiction  over  his  person,  as  he  is 
within  the  power  of  the  court,  or,  as  the  Poet  puts  it :  "now 
art  thou  within  point-blank  of  our  jurisdiction  regal." 

Sec.  297.    Benefit  of  clergy.— 

"Cade.  .  .  .  Thou  hast  most  traitorously  corrupted 
the  youth  of  the  realm,  in  erecting  a  grammar- 
school:  and,  whereas,  before,  our  forefathers  had 
no  other  books  but  the  score  and  the  tally,  thou  hast 
caused  printing  to  be  used ;  and,  contrary  to  the  king, 
his  crown  and  dignity,  thou  hast  built  a  paper  mill. 
It  will  be  proved  to  thy  face,  that  thou  hast  men 
about  thee  that  usually  talk  of  a  noun  and  verb ;  and 
such  abominable  words  as  no  Christian  ear  can  endure 
to  hear.  Thou  hast  appointed  justices  of  the  peace, 
to  call  poor  men  before  them  about  matters  that 
they  were  not  able  to  answer.  Moreover,  thou  hast 
put  them  in  prison,  and  because  they  could  not  read, 
thou  hast  hanged  them ;  when,  indeed,  only  for  that 
cause,  they  have  been  most  worthy  to  live."3 

These  lines  contain  a  direct  reference  to  the  "benefit 
of  clergy,"  which  was  an  exemption  recognized  by  the 
English  law,  in  favor  of  the  culprit  demanding  it,  of  the 
death  penalty  imposed  by  the  law,  for  the  commission  of 


1  Bacon,  Abr.,  Courts;  Thach.  Cr.  Cas.  202;  6  McLean,  C.  C.  355. 

3Bouvier's  Law  Dictionary. 

8  2'  Henry  VI,  Act  IV,  Scene  VII. 


324  THE  LAW  IN  SHAKESPEARE. 

certain  offenses.  A  milder  form  of  punishment  was  sub- 
stituted for  that  provided  for  by  law,  in  favor  of  those 
entitled  to  such  benefit.1 

A  clergyman  was  exempt  from  capital  punishment  as 
often  as  he  repeated  the  offense;  but  the  laity,  provided 
they  could  read,  were  exempted  only  for  the  first  offense, 
but  peers  or  peeresses  were  discharged  for  their  first  offense, 
without  any  reading  at  all,  or  any  punishment  being 
inflicted,  but  women  commoners  had  no  right  to  invoke 
the  benefit  of  clergy.  Instead  of  the  punishment  pro- 
vided by  law  as  to  commoners  who  could  read,  a  substitut- 
ed punishment  of  burning  the  hand,  was  assessed  under 
this  privilege.  Although  the  benefit  of  clergy  originally 
extended  only  to  the  clergy,  in  time  it  came  to  be  extended 
to  all  who  could  read,  whether  clergymen  or  not.2  This 
privilege,  however,  was  never  extended  to  those  guilty  of 
treason,  or  of  misdemeanors  inferior  to  felony.3 

Cade  construed  the  inability  to  read  as  constituting  the 
offense  for  which  the  subjects  had  been  put  to  death,  but 
his  harangue,  although  wrong,  was  no  doubt  intended,  by 
the  Poet,  to  present  the  injustice  of  such  a  plea;  merely 
because  a  man  was  unable  to  read,  he  was  punished — 
regardless  of  the  irrelevancy  of  such  fact  to  his  guilt  or 
innocence — while  one  possessing  this  accomplishment,  was 
subjected  to  a  lighter  form  of  punishment,  or  allowed  to  go 
free.  This  plea  was  evidently  abhorrent  to  the  Poet's 
sense  of  justice. 


*1  Chitty,  Cr.  Law,  667-668. 

2  4  Bl.  Coram,  ch.  28. 

31  Bishop's  Cr.  Law,  sees.  622-624. 

This  privilege,  improperly  given  to  the  clergy  and  others  pos- 
sessing learning,  was  abolished  by  statute,  in  England,  by  7  Geo. 
IV,  c.  28.  And  the  benefit  of  clergy  was  abolished  by  Act  of  Con- 
gress as  to  offenses  punishable  with  death,  in  1790. 

Cade  attempted  to  reverse  the  law  and  make  the  benefit  of 


SECOND  HENRY  THE  SIXTH.  325 

clergy  a  crime,  instead  of  a  defense,  as  evidenced  by  the  follow- 
ing: 

"Cade.    Here's  a  villain. 

Smith.     H'as  a  book  in  his  pocket,  with  red  letters  in  it. 

Cade.    Nay,  then  he  is  a  conjuror. 

Dick.     Nay,  he  can  make  obligations  and  write  court-hand. 

Cade.  I  am  sorry  for't:  the  man  is  a  proper  man,  on  mine 
honour;  unless  I  find  him  guilty,  he  shall  not  die, — Come,  hither, 
sirrah,  I  must  examine  thee;  What  is  thy  name? 

Clerk.     Emanuel.     .     .     . 

Cade.  Dost  thou  use  to  write  thy  name?  or  hast  thou  a  mark 
to  thyself,  like  an  honest  plain  dealing  man? 

Clerk.  I  thank  God,  Sir,  I  have  been  so  well  brought  up,  that 
I   can  write  my   name. 

All.  He  hath  confessed:  away  with  him,  he's  a  villain  and  a 
traitor. 

Cade.  Away  with  him,  I  say;  hang  him  with  his  pen  and  ink- 
horn  about  his  neck."     (2'  Henry  VI,  Act  IV,  Scene  II.) 

Lord  Say  was  also  pronounced  a  traitor,  because  he  could  speak 
French,     (idem.) 

And  Dick,  the  butcher,  said:  "The  first  thing  that  we  do,  let's 
kill  all  the  lawyers."     (Act  IV,  Scene  II.) 

In  2'  Henry  VI,  Dick,  the  butcher,  a  follower  of  Cade,  is  made 
to  say:  "Dick.  But,  methinks,  he  should  stand  in  fear  of  fire, 
being  burnt  i'the  hand  for  stealing  of  sheep."     (Act  IV,  Scene  II.) 

For  interesting  cases,  wherein  this  privilege  was  invoked  in 
the  English  courts,  see  1  Salk.  61;  Hale's  Pleas  of  the  Crown,  by 
Amos,  p.   24;    Kelyng's  Rep.    (18   Car.   11.) 

Reeves,  in  his  History  of  English  Law,  thus  describes  how  the 
benefit  of  clergy  was  taken  away  from  accessories  before  the 
fact  in  case  of  murder  and  other  crimes,  during  the  reign  of 
Philip  and  Mary:  "The  statute  of  Edw.  VI,  which  took  away 
clergy  from  the  principals  in  murder,  had  left  accessories  to 
enjoy  the  capacity  they  derived  at  common  law  from  the  benefit 
of  clergy.  It  happened,  in  3'  and  4'  Phillip  and  Mary,  that  one 
Smith  had  hired  two  persons  to  murder  one  Rufford.  The  wife 
of  Rufford  petitioned  the  House  of  Commons  that  Smith  might, 
by  act  of  Parliament,  be  deprived  of  his  clergy.  Upon  this  the 
Commons  sent  to  the  Queen,  praying  that  she  would  order  Smith 
to  be  brought  from  the  Tower  to  the  bar  of  the  house.  He  was 
accordingly  brought  and  the  other  parties  confessing  the  whole 
matter,  and  Smith  at  length  doing  the  same,  the  bill  was  passed. 


326  THE  LAW  IN  SHAKESPEARE. 

Sec.  298.    Determining  causes. — 

"Say.     Long  sitting  to  determine  poor  men's  causes 
Hath  made  me  full  of  sickness  and  diseases."1 

Determining  poor  men's  causes,  was  the  function  that 
Lord  Say  complains  had  brought  upon  him  the  diseases 
that  he  was  afflicted  with.  A  cause,  is  used  in  the  sense 
of  a  cause  of  action,  which  accrues  to  a  person  when  a 
wrong  has  been  committed,  or  a  duty  violated.  As  one 
of  the  justices  in  eyre  of  the  realm,  it  had  been  the  duty 
of  Lord  Say  to  go  over  the  kingdom,  yearly,  to  hear  the 
causes  of  the  subjects2  and  this,  he  claimed,  had  broken 
down  his  health. 


Sec.  299.    Maiden  rent. — 

"Cade.  .  .  .  The  proudest  peer  in  the  realm  shall 
not  wear  a  head  on  his  shoulders,  unless  he  pay  me 
tribute;  there  shall  not  a  maid  be  married,  but  she 
shall  pay  to  me  her  maidenhead  ere  they  have  it: 
Men  shall  hold  of  me  in  capite:  and  we  charge  and 
command  that  their  wives  be  as  free  as  heart  can 
wish,  or  tongue  can  tell."3 

This  is  a  reference  to  the  old  custom  of  exacting  what 
was  known  as  maiden  rent,  from  the  tenant,  by  the  lord, 
in  lieu  of  the  latter's  privilege  of  spending  the  first  night 
with  the  wife  of  the  tenant. 

Such  rent,  known  to  the  old  English  law,  as  maiden 
rent,  was  in  the  nature  of  a  fine,  paid  to  the  lord  of  the 


But  when  it  was  sent  up  to  the  Lords,  it  was  there  strongly 
opposed,  particularly  by  the  clergy,  who  would  not  consent  to 
any  diminution  of  their  ancient  privileges;  however,  at  last,  it 
got  through  that  house,  and  received  the  royal  assent."  And 
the  next  year  there  was  a  general  law  passed,  taking  clergy  away 
from  accessories  before  the  fact  in  murder  and  other  crimes. 
V  Reeves'  History  Eng.  Law,  p.  158. 

12'  Henry  VI,  Act  IV,  Scene  VII. 

2Crabb's  Eng.  Law,  103-104;   3  Bl.  Comm.  58. 

3  2'  Henry  VI,  Act  IV,  Scene  VII. 


SECOND  HENRY  THE  SIXTH.  327 

manor,  in  consideration  of  the  lord's  relinquishment  of 
his  customary  right  of  lying  the  first  night  with  the  bride 
of  his  tenant.1 

Cade  proclaims  that  he  will  enforce  his  right,  as  lord, 
to  this  barbarous  custom,  and  makes  a  play  upon  the  word 
capite,  in  connection  with  such  custom.2 

Sec.  300.    Bail.— 

"York.     .     .     .     The  sons  of  York,  thy  betters  in  their 
birth, 
Shall  be  their  father's  bail;  and  bane  to  those 
That  for  my  surety  will  refuse  the  boys."3 

Bail,  in  practice,  are  those  persons  who  become  surety 
for  the  appearance  of  a  defendant,  in  court,  at  his  trial 
day.4 

Bail  was  first  introduced,  in  English  law,  to  mitigate  the 
hardship  imposed  upon  offenders,  while  in  the  custody  of 
the  sheriff,  under  arrest,  the  security  thus  offered  standing 
to  the  sheriff  in  the  place  of  the  body  of  the  offender, 
until  his  day  of  trial. 

Taking  bail  was  made  compulsory  upon  the  sheriff  by 
the  statute  23  Hen.  VI,  c.  9,5  and  the  privilege  of  the 
defendant  was  rendered  more  valuable  by  subsequent 
statutes.6 


1  Cowel;    Bouvier's  Law  Dictionary. 

1  As  capite,  in  Latin,  means  head,  his  meaning  is  clear  that 
the  subjects  of  the  realm  should  hold  by  him,  through  the  con- 
cession made  by  their  wives,  in  accordance  with  this  old  custom, 
or,  otherwise,  they  should  lose  their  heads,  i.  e.,  maidenheads. 
Ill  Reeve's  History  Eng.  Law,  510. 

:i  2'  Henry  VI,  Act  V,  Scene  I. 
41  Chitty,  286. 

8  See  Statutes  23  Hen.  VI,  c.  9;  III  Reeve's  Hist.  Eng.  Law, 
p.   481. 

"See  Statutes,  12  Geo.  I,  c.  29;    21  Geo.  II,  c.  3;    19  Geo.  Ill, 

c.  70. 


328  THE   LAW  IN  SHAKESPEARE. 

The  Poet  here  makes  York  demand  that  his  sons  be 
accepted  as  his  bail,  as  if  he  knew  of  the  statutes  giving 
him  the  right  to  demand  bail,  enacted  in  the  reign  of 
King  Henry  VI. 

The  Poet  concludes  that  the  dagger  thrust  into  the  pure  breast 
of  the  loyal  wife,  Lucrece,  "did  bail  it  from  the  deep  unrest  Of 
that  polluted  prison  where  it  breathed."     (1725,  1726.) 

In  the  LXXIV  Sonnet,  the  Poet  thus  discourses  as  to  death: 
"But  be  contended:  when  that  fell  arrest 
Without  all  bail,   shall  carry  me  away, 
My  life  hath   in  this  line  some   interest, 
Which  for  memorial  still  with  thee  shall  stay."     (1,  4.) 

The  Poet  tells  his  friend,  in  the  CXXXIII'  Sonnet: 
"Prison  my  heart  in  thy  steel  bosom's  ward, 
But  then  my  friend's  heart  let  my  poor  heart  bail."     (9,  10.) 


CHAPTER  XXIII. 

"THIRD  PART  OF  KING  HENRY  THE   SIXTH." 

Sec.  301.  No  inter-regnum,  under  English  Law. 

302.  Title  by  confirmation. 

303.  Disinheriting  heir. 

304.  Estate-tail,  upon  condition. 

305.  Acts  of  Parliament. 

306.  Lady  Grey's  suit  for  husband's  lands. 

307.  Concubine. 

308.  Richard  the  Third,  an  embryonic  criminal. 

309.  Richard's  morbid  vanity. 

310.  Crime  the  basis  of  Richard's  character. 

311.  Elizabeth's  plea  of  "Sanctuary." 

Sec.  301.    No  inter-regnum,  under  English  law. — 

"York.     He  rose  against  him,  being  his  sovereign, 
And  made  him  to  resign  his  crown,  perforce. 

War.     Suppose,  my  lords,  he  did  it  unconstrain'd, 
Think  you,  'twere  prejudicial  to  his  crown? 

Exe.     No ;  for  he  could  not  so  resign  his  crown, 

But  that  the  next  heir  should  succeed  and  reign."1 

This  dispute  over  the  claims  of  York  to  the  crown,  is 
based  upon  the  constitutional  principal,  in  English  law, 
that  because  of  the  interest  of  the  public  in  the  crown 
and  the  fact  that  the  Government  could  not  be  destroyed, 
the  king,  as  such,  could  not  create  a  vacancy  in  the  official 
head  of  the  Government,  but  as  the  law  put  it  "the  king 
never  dies."  This  principal,  which  prevented  any  inter- 
regnum,2 or  vacancy  in  the  Government,  along  with  the 
rights  of  the  direct  issue  from  the  last  lawful  holder, 
known  as  the  law  of  primogeniture,  is  the  basis  of  York's 
claim  to  the  crown.  That  the  claim  was  legally  stronger 
than  that  of  the  house  of  Lancaster,  is  clear  to  those 


*3'  Henry  VI,  Act  I,  Scene  I. 
2  2  Bl.  Comm.  191. 

(329) 


330  THE  LAW  IN  SHAKESPEARE. 

familiar  with  the  English  common  law.  The  heir,  to  be 
entitled  to  take  in  that  character,  must  have  been  the 
nearest  male  heir  of  the  whole  blood,  to  the  person  who 
was  last  actually  seized.  This  rule  has  obtained  from  the 
earliest  ages.1  It  is  this  seisin,  which  makes  a  person  the 
stirps,  or  stock,  from  which  all  future  inheritance,  by 
right,  is  derived  by  right  of  blood.  Hence,  if  the  heir,  on 
whom  the  inheritance  has  been  cast,  by  descent,  dies  before 
he  has  acquired  this  seisin,  his  ancestor  not  himself,  is  the 
person  last  seized  and  other  claimants  must  make  them- 
selves his  heirs.2  York,  therefore,  showing  a  direct  descent 
from  the  last  Plantagenet,  Edward  Third,  made  out  a 
prima  facie  better  title  to  the  crown  than  Henry  VI,  as 
these  lords  decided. 

Sec.  302.    Title  by  confirmation. — 

"York.     Confirm  the  crown  to  me,  and  to  mine  heirs, 
And  thou  shalt  reign  in  quiet  whilst  thou  liv'st. 


1Bracton,  lib.  2,  fol.  69a;  2  Hale's  Hist.  Com.  Law,  pp.  94, 
95,  98. 

2Litt.  sec.  8;  Coke,  Litt,  lib;  2  Bl.  Comixi.  209;  Hale's  Hist. 
Comm.  Law,  c.  11. 

King  Henry,  in  his  dilemma,  urged  that  Richard  II  had  volun- 
tarily given  up  the  crown  to  Bolingbroke,  or  Henry  IV,  and  War- 
wick raised  the  question,  after  York  claimed  that  it  was  forced 
upon  him,  whether  or  not  the  rights  of  hereditary  monarchy 
would  be  affected  by  his  act,  even  if  it  had  been  voluntary,  and 
Exeter  replied  that  it  could  not  affect  the  rights  of  the  next 
heir  to  the  crown,  regardless  of  whether  the  ancestor  had  volun- 
tarily or  involuntarily  attempted  to  give  the  crown  to  another. 
This  was  as  the  law  would  view  it. 

In  recognition  of  this  constitutional  principle  of  English  law, 
the  young  Prince,  asks  his  father,  in  3'  Henry  VI:  "Prince. 
Father,  you  cannot  disinherit  me:  If  you  be  king,  why  should 
not  I  succeed?"     (Act  I,  Scene  I.) 

Plowden  shows  how  the  death  of  the  king  causes  the  mere  dis- 
union of  the  king's  natural  body,  from  his  body  politic,  and  the 
kingdom  is  demised  or  transferred  to  his  successor,  so  the  royal 
dignity  or  office  remains  perpetual.     Plowd.  117,  234. 


THIRD  HENRY  THE  SIXTH.  331 

K.  Hen.     I  am  content:  Richard  Plantagenet, 
Enjoy  the  kingdom  after  my  decease."1 

A  title  by  confirmation  is  a  title  derived  by  a  conveyance 
or  contract  by  which  an  estate  that  was  otherwise  void- 
able, or  subject  to  dispute,  is  made  firm  and  unavoidable.2 
To  make  a  valid  confirmation  the  confirmor,  or  the  one 
who  makes  the  confirmation,  must  be  advised  of  his  rights, 
and  the  title  of  the  confirmee  is  not  strengthened  by  the 
confirmation  to  the  extent  of  making  an  otherwise  void 
title  good,  although  one  merely  voidable  may  be  cured  by 
confirmation,  as  it  was  a  maxim  of  the  common  law,  qui 
confirmat  nihil  dat.s  However,  as  the  title  of  York,  to 
the  crown,  was  not  void,  but  only  the  subject  of  dispute 
and  was,  prima  facie  stronger,  in  law,  than  that  of  Henry 
VI,  this  confirmation  would  have  been  sufficient  to  defeat 
the  house  of  Lancaster,  if  the  crown  had  been  the  subject 
for  such  disposition  by  the  king. 

Sec.  303.    Disinheriting  heir. — 

"War.     Why  should  you  sigh,  my  lord? 
K.  Hen.     Not  for  myself,  lord  Warwick,  but  my  son, 
Whom  I  unnaturally  shall  disinherit."4 

Disinheritance  was  the  act,  by  which  a  person  deprived 
his  heir  of  an  inheritance,  that  the  heir,  without  such  act, 
would  have  inherited.5  At  common  law,  in  other  matters 
than  the  crown — in  which  the  public  was  concerned  as 
well  as  the  individual  holding  as  king — anyone  could  give 
his  estate  to  a  stranger  and  thus  disinherit  his  heir  appar- 
ent.6 The  intent  to  disinherit  an  heir,  however,  at  com- 
mon law,  must  be  clearly  apparent  from  the  language  of 


1  3'  Henry  VI,  Act  I,  Scene  I. 

2  9  Coke,  142  a. 

3  Coke,  Litt.  295;   Toullier,  De.  Civ.  Fr.  1.  3,  t.  3,  c.  6n,  476. 
43'Henry  VI,  Act  I,  Scene  I. 

5  Cooper,  Justin.  495. 
•Taylor  vs.  Webb,  Styl.  319. 


332  THE  LAW  IN  SHAKESPEARE. 

the  testator  or  last  owner  of  property  and  if  such  intent 
was  not  clearly  apparent,  the  heir  would  not  be  disin- 
herited.1 

Sec.  304.    Estate-tail,  upon  condition.— 

"K.  Hen.     ...     I  here  entail 

The  crown  to  thee,  and  to  thine  heirs  forever; 
Conditionally,  that  here  thou  take  an  oath, 
To  cease  this  civil  war,  and,  whilst  I  live, 
To  honour  me  as  thy  king  and  sovereign ; 
And  neither  by  treason  nor  hostility, 
To  seek  to  put  me  down  and  reign  thyself."2 

King  Henry  here  attempts  to  entail  the  crown  to  York 
and  his  heirs,3  conditionally,4  such  estate  tail,  to  vest,  on 
his  death,  if  the  condition  subsequent,  i.  e.,  if  the  war  is 
stopped,  if  he  is  honored  as  his  sovereign,  until  his  death, 
and  he  did  not,  by  treason  or  hostility,  seek  to  put  him 
down  and  reign  himself,  during  his  life,  but  the  Poet  did 
not  use  the  words  necessary  to  create  such  an  estate,  for 
in  the  creation  of  an  estate  tail,  words  of  limitation  must 
be  used,  which  indicate  clearly  what  heirs  are  to  take,  the 
usual  form  of  limitation  being  to  one  and  the  heirs  of 
"his  body."5  In  other  words,  the  limitation  by  the  King, 
lacked  the  very  essential  of  an  estate  tail,  which,  instead 

1  Taylor  vs.  Webb,  supra;  Gardner  vs.  Sheldon,  Vaugh.  262; 
Trent  vs.  Hanning,  7  East,  102,  103. 

Queen  Margaret  tells  the  King:  "Q.  Mar.  Thou  would'st  have 
left  thy  dearest  heart-blood  there,  Rather  than  made  that  savage 
duke  thine  heir,  And  disinherited  thine  only  son."  (3'  Henry 
VI,  Act  I,  Scene  I.) 

Clifford  tells  the  king,  in  3'  Henry  VI:  "Cliff.  .  .  .  Thou, 
being  a  king,  bless'd  with  a  goodly  son,  Didst  yield  consent  to 
disinherit  him,  Which  argued  thee  a  most  unloving  father."  (Act 
II,  Scene  II.) 

8  3'  Henry  VI,  Act  I,  Scene  I. 

"Tiedeman,  R.  P.   (3d  ed.),  Sec.  38;   Coke,  Litt.  224a. 
♦Tiedeman,  R.  P.  (3d  ed.),  Sees.  201,  203. 
5Tiedeman,  R.  P.  (3d  ed.),  Sec.  39  and  citations;  2  Bl.  Comm. 
112.116. 


THIRD  HENRY  THE  SIXTH.  333 

of  going  to  one's  heirs  generally — as  here  limited — go  to 
the  heirs  of  one's  "body."1  If  the  words,  "seed/'  "issue" 
or  "children"  had  been  used,  in  connection  with  the  word 
"heirs,"  the  estate,  if  executed  in  proper  form,  would  have 
conveyed  a  good  estate  tail — if  the  crown  had  been  a 
proper  subject  for  such  conveyance — but  in  the  form  here 
given,  the  technical  common  law  estate  tail  was* not 
created.2 

Sec.  305.    Acts  of  Parliament. — 

"Edw.     .     .     .     You — that  are  king,  though  he  do  wear 
the  crown, — 
Have  caused  him,  by  new  act  of  parliament, 
To  blot  out  me,  and  put  his  own  son  in."3 

Parliament  is  the  legislative  branch  of  the  English 
Government,  consisting  of  the  king,  house  of  lords  and 
house  of  commons.4  The  king  is  usually  called  a  part  of 
parliament,  because  of  his  prerogative  of  veto  and  the 
necessity  of  his  approval  of  the  "acts"  of  parliament,  to 
give  them  effect  as  laws.  Since  the  power  of  veto  has 
never  been  exercised  since  queen  Anne's  time,  however, 
the  authority  of  parliament  is  now  practically  unlimited.8 


*Coke,  Litt.  27;   2  Bl.  Comm.  115. 

2  2  Prest.  Est.  480-485. 

If  Lord  Bacon,  or  Lord  Coke  had  been  using  words  to  create 
an  estate  tail  no  such  failure  to  use  the  necessary  common  law 
words  to  create  such  an  estate  would  have  occurred. 

The  Poet  also  makes  the  Queen  fail  to  note  this  distinction 
and  she,  likewise,  in  speaking  of  the  estate  tail,  fails  to  use 
words  equivalent  to  the  words  of  limitation  necessary  at  com- 
mon law,  in  creating  this  character  of  estate. 

Queen  Margaret  asks  the  King:  "Q.  Mar.  To  entail  him  and 
his  heirs  unto  the  crown,  What  is  it,  but  to  make  thy  sepulchre, 
And  creep  into  it,  far  before  thy  time?"  (3'  Henry  VI,  Act  I, 
Scene  I.) 

3  3'  Henry  VI,  Act  II,  Scene  II. 

41  Bl.  Comm.  147,  157;   2  Stephen's  Comm.  537. 
"May,  Imperial  Parliament. 


334  THE  LAW  IN  SHAKESPEARE. 

Edward  here  charged  Queen  Margaret  with  wearing  the 
crown  of  England  and  with  having  dominated  the  king 
to  pass  a  law  blotting  out  his  title  to  the  crown. 

Sec.  306.    Lady  Grey's  suit  for  husband's  lands. — 

"K.  Edw.     This  lady's  husband,  Sir  John  Grey,  was  slain, 
,  His  lands  then  seiz'd  on  by  the  conqueror : 
Her  suit  is  now,  to  repossess  those  lands ; 
Which  we,  in  justice,  cannot  well  deny."1 

The  widow  Grey's  claim  was  in  the  nature  of  that 
enforced  by  the  old  common  law  writ,  Cm  in  vita,  which 
was  a  writ  of  entry  that  lay  for  a  widow  against  a  person 
who  was  in  possession  of  her  land  by  claim  derived  from 
her  husband  in  his  lifetime.2  But  the  Poet  presents  her 
claim  as  derived  from  her  husband,  as  it  was  "his  lands" 
that  the  conqueror  had  confiscated,  not  hers.  However, 
her  suit,  was  to  "reposses  those  lands"  and  Edward, 
whether  impressed  with  the  comeliness  of  the  widow  or 
the  strength  of  her  claim,  was  not  inclined  to  resist  her 
title  to  the  lands. 

Sec.  307.     Concubine. — 

"L.  Grey.     And  that  is  more  than  I  will  yield  unto. 
I  know,  I  am  too  mean  to  be  your  queen, 
And  yet  too  good  to  be  your  concubine. "s 

Lady  Grey  is  made  by  the  Poet,  by  these  lines,  to  refuse 
to  acquire  her  lands,  at  the  expense  of  her  chastity.  A 
concubine,  in  the  law,  is  a  woman  who  cohabits  with  a 
man,  as  his  wife,  without  being  married.4  Among  the 
ancients,  concubinage  was  a  species  of  marriage,  and  was 
the  only  marriage  which  those  who  did  not  enjoy  the  jvs 
con  nubii,  could  contract.  While  recognized  by  law.  as 
a  natural  marriage,  by  the  ancients,  the  status  gave  no 

13'  Henry  VI,  Act  III,  Scene  II. 

2  6  Coke,  8,  9. 

3  3'  Henry  VI,  Act  III,  Scene  II. 

41  Bishop's  Cr.  Proc.  1106;    1  Brown's  Civ.  Law,  80. 


THIRD  HENRY  THE  SIXTH.  335 

lawful  rights,  such  as  those  which  resulted  from  the  civil 
marriage  and  the  law  permitting  such  natural  marriages 
was  repealed  by  the  constitution  of  the  Emperor  Leo,  in 
the  year 


Sec.  308.    Richard  III'  an  embryonic  criminal. — 

"Glo.     .     .     .     love  foreswore  me  in  my  mother's  womb: 
And,  for  I  should  not  deal  in  her  soft  laws, 
She  did  corrupt  frail  nature  with  some  bribe, 
To  shrink  mine  arm  up  like  a  wither'd  shrub; 
To  make  an  envious  mountain  on  my  back, 
Where  sits  deformity  to  mock  my  body; 
To  shape  my  legs  of  an  unequal  size ; 
To  disproportion  me  in  every  part, 
Like  to  a  chaos  or  an  unlick'd  bear-whelp, 
That  carries  no  impression  like  the  dam. 
And  am  I  then  a  man  to  be  belov'd? 
0  monstrous  fault  to  harbor  such  a  thought: 
Then,  since  this  earth  affords  no  joy  to  me, 
But  to  command,  to  check,  to  o'erbear  such 
As  are  of  better  person  than  myself, 
I'll  make  my  heaven — to  dream  upon  the  crown ; 
And,  whiles  I  live,  to  account  this  world  but  hell, 
Until  my  misshap'd  trunk,  that  bears  this  head, 
Be  round  impaled  with  a  glorious  crown."2 

Shakespeare  here  lets  Richard  himself  present  his  de- 
formity as  an  explanation  of  his  criminal  aims  in  life. 
Can  it  be  possible  that  Shakespeare  understood  and  thus 
attempted  to  account  for  his  criminality,  because  of  the 
malformation  of  the  man,  when  in  an  embryonic  condi- 
tion? The  science  of  criminology  teaches  that  this  is  one 
of  the  causes  of  criminals  and  the  Poet  in  presenting  this 
explanation  of  Richard's  character,  offered  an  explanation 
consistent  therewith.  Upon  this  subject  August  Goll  ob- 
serves: "Embryology  teaches  us  that  creatures  may  be 
born  so  deformed  as  to  seem  to  possess  no  resemblance  to 
human  beings,  while  a  more  minute  examination  discloses 
them  to  be  in  possession  of  the  identical  organs  which 

1  Code  Justinian;  Bouvier's  Law  Dictionary. 

2  3'  Henry  VI,  Act  III,  Scene  II. 


336  THE  LAW  IN  SHAKESPEARE. 

characterize  normal  men;  but  owing  to  some  peculiar 
sickly  conditions  the  cells  have  not  been  able  to  develop 
normally — some  pressure  displaced  them,  prevented  their 
functions,  and  caused  malformations  to  such  a  degree  that 
a  hideous  monstrosity  was  the  result  which  otherwise 
might  have  had  a  free  and  harmonious  development."1 

1  Goll's  Criminal  Types,  in  Shakespeare,  pp.  167,  168. 
Elsewhere  this  author  observes*  of  this  character,  as  presented 
by  the  Poet:  "It  is  the  genesis  of  his  evil  courses  that  calls  for 
examination;  it  is  the  psychological  reason  for  the  coming  into 
life  of  such  a  monster,  the  spiritual  understanding  of  the  origin 
of  the  infinite  darkness  which  shrouds  his  heart,  a  darkness 
which  the  human  eye  vainly  tries  to  pierce  so  long  as  it  has  not 
succeeded  in  getting  at  the  cause  of  the  darkness  itself — this  is 
the  point  of  importance  in  Richard  III."     Idem.  p.  167. 

Queen  Margaret  thus  asks  after  Richard,  in  3'  Henry  VI: 
"Q.  Mar.  .  .  .  where  is  that  devil's  butcher,  Hard-favor'd 
Richard?  Richard,  where  art  thou?  Thou  art  not  here:  Murder 
is  thy  alms-deed;  Petitioners  for  blood  thou  ne'er  put'st  back." 
(Act  V,  Scene  V.) 

King  Henry,  before  his  murder  by  Richard,  in  the  Tower,  thus 
upbraids  him,  for  the  murder  of  his  son,  the  Prince: 
"K.  Hen.     Thy  mother  felt  more  than  a  mother's  pain, 
And  yet  brought  forth   less  than   a  mother's   hope; 
To-wit,  an  indigest  deformed  lump, 
Not  like  the  fruit  of  such  a  goodly  tree. 
Teeth  had'st  thou  in  thy  head,  when  thou  wast  born, 
To  signify, — thou  cam'st  to  bite  the  world : 
And,  if  the  rest  be  true,  which  I  have  heard,"  etc. 

(3'  Henry  VI,  Act  V,  Scene  VI.) 
And  Richard  himself,  then  soliloquizes,  as  follows: 
"Glo.    ...     I,  that  have  neither  pity,  love  nor  fear, 
Indeed,  'tis  true,  that  Henry  told  me  of; 
For  I  have  often  heard  my  mother  say, 
I  came  into  the  world  with  my  legs  forward: 
Had   I   not   reason,   think   ye,   to  make   haste, 
And  seek  their  ruin,  that  usurp'd  our  right? 
The  midwife  wonder'd;  and  the  women  cried 
O,  Jesus  bless  us,  he  is  born  icith  teeth: 
And  so  I  was;   which  plainly  signified — 
That  I  should  snarl  and  bite  and  play  the  dog." 

(3'  Henry  VI,  Act  V,  Scene  VI.) 


THIRD  HENRY  THE  SIXTH.  337 

Sec.  309.    Richard's  morbid  vanity. — 

"Glo.     .     .     .     yet,  I  know  not,  how  to  get  the  crown, 
For  many  lives  stand  between  me  and  home; 
And  I, — like  one  lost  in  a  thorny  wood, 
That  rents  the  thorns  and  is  rent  with  the  thorns, 
Seeking  a  way,  and  straying  from  the  way; 
Not  knowing  how  to  find  the  open  air, 
But  toiling  desperately  to  find  it  out, — 
Torment  myself  to  cateh  the  English  crown: 
And  from  that  torment  I  will  free  myself, 
Or  hew  my  way  out,  with  a  bloody  axe."1 

Tn  seeking  a  cause  for  his  criminal  nature,  as  if  the  Poet 
understood  the  deep  science  of  criminology,  Shakespeare 
here  presents  the  natural  morbid  vanity  of  the  deformed 
person,  as  one  of  the  reasons  for  the  criminal  inclinations 
of  Richard  III.  Upon  this  phase  of  the  subject  the 
scientific  criminologist  observes:  "Who  does  not  know 
the  morbid  vanity  from  which  deformed  natures  suffer? 
Their  abnormal  vanity  continually  occupies  them  with 
the  thought  of  self,  which  is  thereby  pushed  so  unduly 
to  the  front  that  they  are,  as  it  were,  hypnotized  by  it,  and 
are  blinded  to  the  proper  proportions  of  things.  If  their 
bodily  defects  make  them  exceptions,  they  will,  also,  be 
exceptional  in  winning  great  distinctions.  They  want  to 
go  far,  to  see  others  bend  before  them,  then  they  may  be 
reconciled  to  their  misfortune.  .  .  .  They  yearn 
after  outward  recognition,  positions  of  honour,  power  and 
influence;  they  wish  to  hear  themselves  talked  of,  they 
wish  to  enjoy  the  incense  of  others,  to  receive  marked 
demonstrations  of  regard."2 

Sec.  310.    Crime  the  basis  of  Richard's  character. — 

"Glo.     .     .     .     Why,  I  can  smile,  and  murder  while  I 
smile ; 
And  cry,  content,  to  that  which  grieves  my  heart; 
And  wet  my  cheeks  with  artificial  tears, 


1  3'  Henry  VI,  Act  III,  Scene  II. 

■  Goll's  Criminal  Types  in  Shakespeare,  pp.  193,  194. 


338  THE  LAW  IN  SHAKESPEARE. 

And  frame  my  face  to  all  occasions. 

I'll  drown  more  sailors  than  the  mermaid  shall; 

I'll  slay  more  gazers  than  the  basilisk ; 

I'll  play  the  orator  as  well  as  nestor, 

Deceive  more  slily  than  Ulysses  could, 

And,  like  a  Sinon,  take  another  Troy : 

I  can  add  colors  to  the  chameleon; 

Change  shapes,  with  Proteus,  for  advantages, 

And  set  the  murd'rous  Machiavel  to  school. 

Can  I  do  this,  and  cannot  get  a  crown? 

Tut:  were  it  further  off,  I'll  pluck  it  down."1 

Commenting  upon  this  criminal  nature  of  the  man, 
Richard,  as  portrayed  by  the  Poet,  the  criminal  expert, 
Goll  said:  "Richard  III  is  the  'criminal  by  instinct'  of 
the  first  water.  Solely  animated  by  his  own  personal  am- 
bition, thirst  for  power,  and  the  crown,  without  a  spark  of 
altruistic  motive,  without  a  thought  at  his  succession  of 
realizing  any  high  aims,  he  attains  his  object  by  cunning, 
lying,  impudence,  or  hypocrisy,  and,  chiefest  by  a  series 
of  the  blackest  crimes.  No  act  of  his  is  the  result  of 
momentary  moods,  impetuous  emotions ;  everything  is  the 
necessary  consequence  of  cold,  clear  calculation."2 

Sec.  311.    Elizabeth's  plea  of  sanctuary. — 

"Queen  Elizab.     I'll  hence  forthwith  unto  the  sanctuary, 
To  save  at  least  the  heir  of  Edward's  right. 
There  shall  I  rest  secure  from  force  and  fraud."3 

13'  Henry  VI,  Act  III,  Scene  II. 

2Goll's  Criminal  Types  in  Shakespeare,  pp.  165,  166. 

Speaking  elsewhere  of  the  splendid  portrayal  of  the  criminal 
by  instinct  which  this  character  affords  criminal  science,  Goll 
observes:  ".  .  .  in  every  case,  he  substitutes  for  the  rights 
of  all,  his  own  rights;  and  in  these  'own  rights'  he  includes 
everything  which  his  personal  lusts  and  desires  urge  him  to  ob- 
tain. .  .  .  this  right  is  the  fixed  foundation  of  his  mind;  it 
shows  its  effect  everywhere,  at  all  times  and  in  all  directions,  as 
soon  as  an  impulse  to  action  makes  itself  felt  in  him."  Idem. 
p.  161. 

3  3'  Henry  VI,  Act  IV,  Scene  IV. 


THIRD  HENRY  THE  SIXTH.  339 

During  the  period  of  the  world's  history  when  the  law's 
redress  of  wrongs  was  so  inadequate  and  the  ambition  and 
cupidity  of  the  race  so  often  imposed  such  hardships  upon 
the  nobility,  it  is  little  wonder  that  they  established  a  place 
where  they  would  be  secure  from  such  attacks  as  those 
which  threatened  the  Queen,  in  this  play.  When  the 
dangerous  game  for  place  and  power  had  gone  against  one 
and  the  arbitrament  of  war  had  decided  for  an  Opponent 
who  sought  one's  life  and  family,  the  privilege  of  sanc- 
tuary was  one  very  dear  to  Englishmen  and  it  alone,  fur- 
nished an  abode  free  from  the  "force  and  fraud"  of  the 
outer  world.1  The  right  of  sanctuary  dates  from  an  early 
period  in  English  history,  for  Alfred,  Ethelred,  and  all 
subsequent  Saxon  kings,  expressly  recognized  the  right, 
by  their  laws,  and  in  a  state  of  society  like  that  among  the 
Anglo-Saxons,  the  immunity  indulged  to  places  of  wor- 
ship, was  not  only  politic,  but  humane  and  necessary,  as 
well.  It  prevented  the  shedding  of  blood  and  preserved 
the  peace.  Hence,  we  find,  that  from  the  earliest  time,  in 
England,  places  of  public  worship  were  held  in  such  rev- 
erence that  criminals  flying  thither  were,  during  their 
stay,  allowed  protection  from  arrest,  whatever  their  crime 
might  be.2  If  the  person  was  drawn  violently  from  the 
place  where  he  had  embraced  sanctuary,  he  could  plead 
this  in  abatement  of  the  prosecution,  during  the  reign  of 
Edward  III,3  but  during  the  reign  of  Henry  VIII,  by 
statute,  (27  Henry  VIII,  c.  19)  the  benefit  of  sanctuary 
was  denied  to  all  offenders  guilty  of  high  treason.4 


1  For  description  of  the  Sanctuary  at  Westminster,  where  Eliz- 
abeth fled,  with  her  mother  and  three  daughters,  in  1470,  which 
was  destroyed  in  1775,  see  Rolfe's  3'  Henry  VI,  p.  215,  notes. 

2 1   Reeves's  History  Eng.   Law,   p.   198. 

3  III  Reeve's  History  Eng.  Law.  p.  331. 

4 IV  Reeve's  History  Eng.  Law,  p.  469. 

In  a  recent  article  in  Law  Notes,  (Vol.  14,  p.  51,  June,  1910) 
discussing  the  ancient  privilege  of  Sanctuary,  the  author  ob- 
serves: 


340  THE  LAW  IN  SHAKESPEARE. 

"That  system  was  not  always  consistent  or  clear,  but  its  main 
outlines  were  as  follows:  Sanctuaries  were  of  two  kinds — 
general,  as  all  churches  and  churchyards;  special,  as  St.  Mar- 
tin's le  Grand  and  Westminster.  No  doubt  these  last  had  orig- 
inally also  a  religious  sanction.  Such  places  were  twice  con- 
secrate; Pope  and  King,  the  canon  and  the  common  law,  united 
in  their  favor.  They  protected  felons,  but  not  those  guilty  of 
sacrilege  or  (some  held)  of  treason.  They  were  not  properly 
for  debtors,  whose  reception  was  nevertheless  justified  by  an 
ingenious  quibble.  Imprisonment  might  endanger  life,  and 
therefore  (so  the  learned  argued)  the  runaway  debtor  must 
be  received.  A  man  took  sanctuary  thus: — Having  stricken 
(let  us  say)  his  fellow,  he  fled  to  the  cathedral  and  knocked 
(with  how  trembling  a  hand!)  at  the  door  of  the  galilee.  Over 
the  north  porch  were  two  chambers  where  watchers  abode  night 
and  day.  On  the  instant  the  door  swung  open,  and  had  scarce 
closed  behind  the  fugitive  when  the  galilee  bell  proclaimed  to 
the  town  that  another  life  was  safe  from  them  that  hunted. 
Then  the  prior  assigned  him  a  gown  of  black  cloth  marked  on 
the  left  shoulder  with  the  yellow  cross  of  St.  Cuthbert,  and 
therewith  a  narrow  space  where  he  might  lie  secure  of  life, 
though  ill  at  ease.  So  it  was  at  Durham.  At  Westminster  the 
sanctuary  man  bore  the  cross  keys  for  a  badge,  and  walked  in 
doleful  state  before  the  abbot  at  procession  times;  and  there 
were,  no  doubt,  countless  variations.  A  phrase  of  the  time  re- 
veals how  close  the  watch  was  now  and  again.  Under  Edward 
II  it  was  complained  that  the  sanctuary  man  might  not  remove 
so  much  as  a  step  beyond  the  precincts,  causa  superflui  de- 
ponendi,  without  being  seized  and  haled  to  prison.  He  was 
fed  and  lodged  in  some  rough  sort  for  forty  days,  within  which 
time  he  must  confess  his  crime  before  the  coroner  at  the  church- 
yard gate,  and  so  constitute  himself  the  king's  felon.  Then 
he  swore  to  abjure  the  realm.  The  coroner  assigned  him  a  port 
of  embarkation  (chosen  by  himself),  whither  he  must  hasten 
with  bare  head,  carrying  in  his  hand  a  cross,  not  departing, 
save  in  direst  need,  from  the  king's  highway.  He  might  tarry 
on  the  shore  but  a  single  ebb  and  flow  of  the  tide,  unless  it 
were  impossible  to  come  by  a  ship,  in  which  case  he  must  wade 
up  to  his  knees  in  the  sea  every  day.  He  was  protected  for 
another  forty  days,  when,  if  he  could  not  find  passage,  he  re- 
turned whence  he  came,  to  try  his  luck  elsewhere." 

"On  the  whole  the  privilege  was  strictly  respected.  For  in- 
stance,  the   king's   justices   were   wont   to   hold    session    in    St. 


THIRD  HENRY  THE  SIXTH.  341 

Martin's  Gate.  They  sat  on  the  very  border.  The  accused  were 
placed  on  the  other  side  of  the  street;  a  channel  ran  between 
them  and  their  judges,  and  if  they  once  got  across  that  they 
claimed  sanctuary,  and  all  proceedings  against  them  were  an- 
nulled. And  one  sees  the  reason  why  Perkin  Warbeck  took  such 
care  'to  squint  one  eye  upon  the  crown  and  the  other  on  the 
sanctuary'  (as  Bacon  curiously  phrases  it);  yet  the  great  case  of 
Becket  is  there  to  show  that  nothing  was  absolutely  sacred  in 
these  violent  years.  Nor  does  it  stand  alone.  In  1191,  Jeffrey, 
Archbishop  of  York,  and  son  of  Henry  II,  was  seized  at  the  altar 
of  St.  Martin's  Priory,  Dover,  and  dragged,  episcopal  robes  and 
all,  through  dirty  streets  to  the  castle;  this,  too,  by  order  of 
William  Longchamp,  Bishop  of  Ely,  and  Papal  legate.  In  1378, 
Archbishop  Sudbury  complained  in  Parliament  that  one  Robert 
Hawley  had  been  slain  at  the  high  altar  even  while  the  priest 
was  saying  a  mass.  It  was  rumored  indeed  that  one  Thurstian,  a 
knight,  chasing  a  sanctuary  man  with  drawn  sword,  was  of  a, 
sudden  stricken  with  grievous  ailments.  But  this  and  other 
like  stories  did  not  deter  the  citizens  of  London  (circa  1349) 
from  assembling  at  supper  time  in  a  great  crowd,  and  dragging 
forth  a  soldier  who  had  escaped  on  the  way  from  Newgate  to 
Guildhall,  where  he  was  being  taken  for  trial.  In  another  case 
(temp.  Henry  VI),  where  a  youth  had  taken  sanctuary  after 
having  foully  slain  a  kind  mistress,  the  good  women  about  St. 
Martin's  broke  in  and  dispatched  him  with  their  distaffs.  Of 
those  who  took  sanctuary  to  good  purpose  the  most  famous  was 
Elizabeth,  widow  of  Edward  IV,  who,  in  1471,  registered  herself 
a  sanctuary  woman  in  Westminster,  and  there  sat,  in  Sir  Thomas 
More's  phrase,  'alow  in  the  rushes.'  But  you  have  read  the 
tragic  story  in  Shakespeare.  And  in  a  later  age  'beastly  Skelton' 
(as  Pope  will  have  him),  from  that  same  Westminster  safely 
lampooned  the  mighty  Wolsey,  though  for  that  he  needs  must 
live  and  die  there." 

"To  catalogue  the  evils  of  the  sanctuary  system  were  to  show 
lack  of  historical  sympathy,  nay,  even  of  humor.  The  former 
days  were  not  as  these;  it  had  its  place  with  the  shrine  and  the 
pilgrimage,  the  knight-errant,  and  the  trial  by  ordeal  in  the 
strange  economy  of  a  vanished  world.  As  the  times  grew  modern 
its  practical  inconvenience  was  felt  for  the  first  time.  Yet  the 
occasion  of  the  first  assault  on  the  privilege  of  sanctuary  was  one 
where  the  benefits  were  conspicuous,  and  the  assailant  had  the 
worst  of  motives.  It  was  the  case  just  noted  of  Edward  IV's 
widow;  she  had  the  young  Duke  of  York  as  yet  safe  with  her. 
Her  enemies  were  at  a  loss  for  the  moment,  and  Buckingham, 


342  THE  LAW  IN  SHAKESPEARE. 

then  the  sworn  ally  of  Richard  of  Gloucester,  took  occasion  in  the 
Privy  Council  to  attack  her  place  of  refuge.  'There  were  two 
chief  plague-spots  in  London,'  he  snarled:  'one  at  the  elbows  of 
the  city  (Westminster),  the  other  in  the  very  bowels  thereof 
(St.  Martin's  le  Grand).  These  places  were  the  refuge  of  theeves, 
mirtherers,  and  malitious,  heynous  traytors!  nay,'  he  added, 
'men's  wives  ran  hither  with  their  husbands'  plate,  and  say 
they  dare  not  abide  their  husbands  for  beating,'  with  more  to 
the  same  effect.  Had  not  Elizabeth  yielded,  Westminster  might 
have  witnessed  a  violation  as  affecting  as  that  of  Canterbury." 


CHAPTER  XXIV. 

"KING    RICHARD    THE    THIRD." 

Sec.  312.  Richard's  crimes  prompted  by  his  isolation 

313.  Law  of  God  and  man. 

314.  Acquittal  of  the  accused. 

315.  Accessory  before  the  fact. 

316.  Avouch. 

317.  Disputing  with  Lunatic. 

318.  Clothing  villany  with  "holy  writ." 

319.  Warrant  no  protection  against  murder. 

320.  Guilty  conscience. 

321.  Reward. 

322.  Death  without  lawful   conviction. 

323.  Divine  Law  against  murder. 

324.  Benefit  of  "Sanctuary." 

325.  Moveables. 

326.  Bigamy. 

327.  Levitical  Law  against  niece  marrying  uncle. 

328.  Richard  the  Third's   inherited   criminal   instinct. 

329.  Demise. 

330.  Corrupted  Justice. 

331.  Swords  as  Laws,  under  Richard's  reign. 

Sec.  312.    Richard's  crimes  prompted  by  his  isolation. — 

"Glo.     ...     I,  that  am  rudely  stamp'd,  and  want  love's 
majesty, 
To  strut  before  a  wanton  ambling  nymph; 
I,  that  am  curtaiPd  of  this  fair  proportion, 
Cheated  of  feature  by  dissembling  nature, 
Deform'd,  unfinish'd,  sent  before  my  time, 
Into  this  breathing  world,  scarce  half  made  up, 
And  that  so  lamely  and  unfashionable, 
That  dogs  bark  at  me,  as  I  halt  by  them ; — 
Why  T,  in  this  weak  piping  time  of  peace, 
Have  no  delight  to  pass  away  the  time ; 
Unless  to  spy  my  shadow  in  the  sun, 
And  descant  on  mine  own  deformity; 
And  therefore. — since  I  cannot  prove  a  lover 

(343) 


344  THE  LAW  IN  SHAKESPEARE. 

To  entertain  these  fair  well-spoken  days, — 

I  am  determined  to  prove  a  villain, 

And  hate  the  idle  pleasures  of  these  days."1 

In  looking  for  the  psychological  reason  for  his  very 
pronounced  criminal  appetite  and  the  marked  cruelty  in 
his  make-up,  the  criminologist  can  but  look  to  the  natural 
isolation  which  Richard's  deformity  forced  upon  him,  as 
the  genesis  for  his  criminal  course.  This  bodily  defect 
must  have  been  construed  by  the  Poet  as  the  reason  for 
his  criminality,  for  he  again  and  again  presents  it,  as  the 
reason  for  his  extreme  sensitiveness.  Such  deformity 
would  naturally  lead  to  so  many  humiliations,  in  a  proud 
sensitive  nature,  as  to  make  of  him  a  lonely,  revengeful 
creature,  with  his  hand  raised  against  all  the  world. 

Of  this  bodily  defect,  as  a  basis  for  his  criminality,  the 
criminal  expert,  Goll,  in  contemplating  the  character  of 
Richard,  observes:  "One  only  feels  duties,  as  such,  to 
one's  own  community.  The  soldier  feels  no  duties  to  the 
enemy,  the  European  feels  himself  released  from  all  duties 
of  civilization,  when  he  is  called  to  action,  among  savage 
tribes.  And  to  Richard  everybody  else  is  an  enemy,  a 
foreigner,  with  whom  he  has  no  connection,  to  whose  race 
he  does  not  belong.  .  .  .  Because  he  stands  alone, 
every  man's  hand,  has,  from  the  first  day,  been  lifted 
against  him,  therefore  his  hand,  too,  is  lifted  against 
every  man,  against  all  these  hated,  well-made  people,  who 
together  form  one  community,  opposed  to  him  alone.  He 
is  at  war  with  them  all.  And  in  war,  war's  deeds  are 
done."2 


1King  Richard  III,  Act  I,  Scene  I. 

'Goll's  Criminal  Types  in  Shakespeare,  pp.  197,  198. 

In  making  love  to  Lady  Anne,  Richard  taunts  himself  with  his 
isolation:  "I  no  friends  to  hack  my  suit  withal,  But  the  plain 
devil  and  dissembling  looks."     (Act  I,  Scene  II.) 

Richard  thus  moralizes,  after  the  determination  to  put  his  wife 
to  death,  in  King  Richard  III:  "K.  Rich.  .  .  .  Uncertain 
way  of  gain:    But  I  am  in  so  far  in  blood,  that  sin  will  pluck 


RICHARD  THE  THIRD.  344a 

Sec.  312a.    Ordeal  of  the  bier. — 

"Lady  Anne.    ...   0  gentlemen,  see,  see!  dead  Henry's 
wounds 
Open  their  congeal'd  mouths  and  bleed  afresh."1 

"When  Gloster  here  is  made  to  interrupt  the  funeral 
procession  of  Henry  VI,  Lady  Anne,  as  if  familiar  with 
the  old  law  of  ordeal,  known  as  the  ordeal  of  the  bier, 
exclaims  to  the  bystanders  that  the  guilty  presence  of  the 
murderer  has  made  the  wounds  of  the  deceased  to  open 
and  cry  out  against  him. 

For  centuries  murderers  were  tried  by  ordeal,  and  the 
tests  of  the  red-hot  iron,  for  the  patricians,  and  of  the 
hot  water,  for  the  rustics  and  common  people,  were 
among  the  most  reliable  methods  in  use  for  determining 
their  guilt  or  innocence.  By  the  ordeal  of  the  bier,  here 
referred  to,  the  suspected  murderer  was  required  to  ap- 
proach and  touch  the  body  of  the  murdered  person,  when 
it  was  supposed,  if  he  was  guilty,  to  bleed  afresh,  or  to 
foam  at  the  mouth,  or  give  other  evidences  of  the  pres- 
ence of  the  murderer.2 

This  proceeding,  which  obtained  for  centuries  in  the 
English  law,  was  finally  abolished  in  the  year  1219,  by 
the  Council  of  Henry  III,  after  which  it  was  used  again 
only  in  the  trial  of  witches  and  sorcerers,  because  of  the 
supposed  absence  of  direct  evidence  against  them.3 

"The  ordeal  of  the  bier  was  exemplified  in  the  cur- 
rent literature  of  the  age  of  Richard  Coeur-de-Lion,  for 
the  histories  of  that  king  report  that  when  he  met  the 
funeral  procession  of  his  father,  Henry  II,  at  Fontev- 


1  Richard  III,  Act  I,  Scene  II. 

8 Lea,  "Superstition  and  Force"  (3rd  ed.),  pp.  315,  323;  White's 
"Legal  Antiquities;"  Pattetta,  Ordalie;  1  Reeve's  History  Eng- 
lish Law,  203;  Herbert's  Antiquities  (1804),  p.  146;  Leges 
Athelstane;  1  Pollock  &  Maitland's  History  English  Law,  152;  II 
Idem.,  599,  650;  Leg.  Henrici,  I,  cap.  lxv. 

» II  Pollock  &  Maitland's  History  English  Law,  pp.  599,  650. 


344b  THE  LAW  IN  SHAKESPEARE. 

raud,  the  blood  spurted  from  the  nose  of  the  deceased, 
because  of  the  treason  and  rebellion  of  which  his  son 
had  been  guilty. 

"  Shakespeare  utilizes  this  story  of  Richard  Coeur-de- 
Lion,  in  the  funeral  scene  in  Richard  III.4 

"The  circumstances  and  conditions  under  which  ordeal 
was  employed,  in  the  trial  of  the  various  felonies  known 
to  the  early  Saxon  laws,  varies,  necessarily,  with  the 
customs  and  legislation  of  the  different  rulers,  and  some- 
times we  find  that  the  right  of  selection  obtained,  be- 
tween this  and  other  modes  of  compurgation,  or  between 
the  different  forms  of  ordeal. '  '5 


4  White's  "Legal  Antiquities,"  p.  166. 

6  Ante  idem.,  168;  II  Comti,  pole.  cap.  xxx,  xii;  L.  Henrici,  I. 
cap.  ixv,  sec.  3. 

"In  Sir  Walter  Scott's  'Minstrelsy  of  the  Scottish  Border'  we 
also  find  reference  to  this  ordeal  of  the  bier,  when,  in  the  ballad 
of  Earl  Richard,  this  author  established  the  innocence  of  the 
maid,  by  this  test: 

'Put  na  the  wite  on  me,'  she  said; 

'It  was  my  may  Katherine.' 

Then  they  hae  cut  baith  fern  and  thorn, 

To  burn  that  maiden  in. 

It  wadna  take  upon  her  cheik, 

Nor  yet  upon  her  chin; 

Nor  yet  upon  her  yellow  hair, 

To  cleanse  that  deadly  sin. 

The  maiden  touched  that  clay-cauld  corpse, 

A  drap  it  never  bled; 

The  ladye  laid  her  hand  on  him, 

And  soon  the  ground  was  red." 

And  thus  Scott  uses  the  ordeal  of  the  bier  to  establish  that 
the  accuser  was  herself  the  guilty  person,  and  the  Bard  of  Avon 
and  the  Elder  Edda  utilize  this  ordeal  and  that  of  the  boiling 
water,  to  demonstrate  the  infallibility  of  this  Divine  Test,  when 
applied,  to  ascertain  the  guilt  or  innocence  of  one  accused  of 
such  crimes  as  may  legitimately  be  the  subject  of  this  charac- 
ter of  proceeding,  known  to  the  ancient  law  as  one  of  the  Judg- 
ments of  God."    White's  "Legal  Antiquities,"  pp.  166,  167. 


RICHARD  THE  THIRD.  345 

Sec.  313.    Law  of  God  and  man. — 

"Anne.     Villain,  thou  know'st  no  law  of  God  'nor  man; 
No  beast  so  fierce,  but  knows  some  touch  of  pity."1 

Anne  here  declares  that  Richard  is  devoid  of  the  first 
element  of  citizenship,  being  without  fear  of  the  law  of 
either  God  or  man.  One  without  fear  of  the  law  of  man 
alone,  is  a  criminal,  for  criminality  consists  of  following 
one's  inclinations,  regardless  of  the  law,  which  protects 
the  rights  of  others.  If,  added  to  this,  one  is  also  regard- 
less of  the  obligations  of  the  Divine  law,  and  recognizes 
no  adherence  thereto,  he  is,  if  possible,  below  the  beasts, 
for,  as  the  Poet  has  Anne  say :  "No  beast  so  fierce  but 
knows  some  touch  of  pity."2 


on    sin.     Tear-falling    pity    dwells    not    in    this    eye."     (Act    IV, 
Scene   II.) 

Referring  to  Richard  III,  Queen  Margaret  tells  the  Duchess  of 
York,  in  King  Richard  III:  "Q.  Mar.  Richard  yet  lives,  hell's  black 
intelligencer;  Only  reserv'd  their  factor  to  buy  souls,  and  send 
them  thither."     (Act  IV,  Scene  IV.) 

Contemplating  his  own  character,  before  the  battle  with  Rich- 
mond, King  Richard  III  thus  concludes  as  to  himself: 
"K.  Rich.     I  shall  despair. — There  is  no  creature  loves  me; 
And,  if  I  die,  no  soul  shall  pity  me:  — 
Nay,  wherefore  should  they;    since  that  I   myself 
Find  in  myself  no  pity  to  myself. 
Methought  the  souls  of  all  that  I  had  murder'd 
Came  to  my  tent:   and  every  one  did  threat 
To-morrow's  vengeance  on  the  head  of  Richard." 

(Act  V,   Scene   III) 

1  King  Richard  III,  Act  I,  Scene  II. 

2  God  was  supposed,  in  the  olden  times,  to  lend  assistance  to 
the  innocent  and  a  prisoner  was  asked,  before  being  put  upon 
his  trial,  whether  he  would  go  to  trial  by  ordeal,  or  by  jury,  i.  e., 
by  God  or  his  country.  If  the  former,  he  had  the  trial  by  battle, 
in  which  God  was  supposed  to  help  the  innocent,  but  if  the  latter, 
he  was  tried  by  a  jury.     1  Chitty,  Cr.  Law,  416. 


346  THE   LAW  IN  SHAKESPEARE. 

Sec.  314.    Acquittal  of  the  accused. — 

"Glo.     .     .     .     Vouchsafe,  divine  perfection  of  a  woman, 
Of  these  supposed  evils,  to  give  me  leave, 
By  circumstance,  but  to  acquit  myself."1 

Richard  here  asks  of  Anne  the  privilege  of  establishing 
his  innocence  of  the  charges  she  has  brought  against  him. 
In  criminal  practice,  acquittal  is  the  absolution  of  a  per- 
son charged  with  a  crime  or  misdemeanor.2  Acquittals 
are  either  by  introduction  of  the  facts,  after  a  trial,  or  by 
law,  because  of  the  application  of  the  law  to  the  facts  as 
shown  to  exist.  The  acquittal  here  invoked,  is,  of  course, 
because  of  the  facts  as  Richard  claims  them  to  exist. 

Sec.  315.    Accessory  before  the  fact. — 

"Glo.     ...     Is  not  the  causer  of  the  timeless  deaths, 
Of  these  Plantagenets,  Henry  and  Edward, 
As  blameful  as  the  executioner?"3 

Richard  here  puts  the  question  as  to  whether  or  not  the 
accessory  before  the  fact,  to  these  several  murders,  is  not 
equally  guilty,  with  the  persons  who  carry  out  the  mur- 
ders as  planned.  An  accessory  in  the  perpetration  of  a 
crime,  is  one  who,  although  not  the  chief  actor  therein, 
is  in  some  way  concerned  in  the  crime,  either  before  or 
after  the  crime  is  committed.  An  accessory  before  the 
fact,  is  one  who,  though  absent  when  it  was  committed, 
yet  procured,  counselled  or  commanded  its  commission.4 
An  accessory  after  the  fact,  is  one  who,  knowing  a  crime 
to  be  committed,  receives,  relieves,  comforts  or  assists  the 
felon.5  Richard  insists  that  the  accessory  before  the  fact 
is  just  as  guilty  as  the  executioner  and  attempts  to  thus 
shift  the  guilt  from  his  own  guilty  shoulders  to  those  of 
his  brother. 


1  King  Richard  III,  Act  I,  Scene  II. 

2  Coke,  2'  Inst.,  364. 

8  King  Richard  III,  Act  I,  Scene  II. 
41  Hale,  Cr.  PI.  615. 
5  4  Bl.  Comm.   37. 


RICHARD  THE  THIRD.  347 

Sec.  316.    Avouch. — 

"Glo.     ...     I  will  avouch,  in  presence  of  the  king: 
I  dare  adventure  to  be  sent  to  the  Tower."1 

To  avouch  is  to  assert  publicly,  or  deliberately,  a  mat- 
ter of  fact,  without  equivocation,  or  vacilation,  either  by 
written  declaration  or  by  word  of  mouth,  so  that  the  fact 
thus  asserted  may  be  used  as  evidence  of  its  existence.2 
Richard  here  asserts  his  willingness  to  make  public  state- 
ment of  the  facts  asserted,  even  if  it  results  in  his  being 
arrested  and  sent  to  the  Tower. 


Gloster  tells  Anne,  in  King  Richard  III:  "Glo.  .  .  .  This 
hand,  which,  for  thy  love,  did  kill  thy  love,  Shall,  for  thy  love, 
kill  a  far  truer  love;  To  both  their  deaths  shalt  thou  be  acces- 
sary."    (Act  I,  Scene  II.) 

Explaining  to  her  wronged  lord,  how  her  chastity  was  forced, 
the  noble  Lucrece  narrated: 

"Immaculate  and  spotless  is  my  mind; 
That  was  not  forced;    that  never  was  inclined 
To  accessary  yieldings,  but  still  pure 
Doth  in  her  poison'd  closet  yet  endure."     (1656,  1660.) 

*King  Richard  III,  Act  I,  Scene  III. 

1  Bouvier's  Law  Dictionary.  In  Deutoronomy  occurs  the  fol- 
lowing: "Thou  hast  avouched  the  Lord  this  day  to  be  thy  God." 
Deut.  26,  17. 

Speaking  of  his  contemplated  charges  against  Cardinal  Wolsey, 
Buckingham  said,  in  King  Henry  VIII:  "Buck.  To  the  king  I'll 
say't;  and  make  my  vouch  as  strong,  as  shore  of  rock."  (Act  I, 
Scene  I.) 

Horatio  is  made  to  say,  in  Hamlet:  "Hor.  Before  my  God,  I 
might  not  this  believe,  Without  the  sensible  and  true  avouch,  Of 
mine  own  eyes."     (Act  I,  Scene  I.) 

Brabantio  charged  Othello  with  seduction  of  his  daughter,  be- 
fore the  Duke,  in  the  following  lines: 
"Bra.    I  therefore  vouch  again, 

That  with  some  mixtures  powerful  o'er  the  blood, 

Or  with  some  dram  conjur'd  to  this  effect, 

He  wrought  upon  her."  (Act  I,  Scene  III.) 

Othello  tells  the  Senators,  in  regard  to  Desdemona  accompany- 
ing him  to  the  wars:  "Vouch  with  me,  heaven;  I  therefore  beg 
it  not,  To  please  the  palate  of  my  appetite."     (Act  I,  Scene  III.) 


348  THE   LAW   IN   SHAKESPEARE. 

Sec.  317.    Disputing  with  lunatic. — 

"Dot.     Dispute  not  with  her,  she  is  lunatic."1 

A  lunatic,  in  law,  is  one  who  is  without  the  power  of 
reasoning  which  is  possessed  by  individuals  in  health.2 
A  lunatic  was  said  to  be  non  compos  mentis,  not  of  sound 
mind,  or  understanding,  and  for  this  reason  the  person  so 
found  was  not  responsible,  in  law,  for  his  or  her  acts.3 

Of  course  not  having  any  understanding  or  reasoning 
powers,  a  lunatic  would  be  incapable  of  reasoning  or  dis- 
pute, in  an  intelligent  manner,  so  this  is  why  all  further 
dispute  is  discouraged,  in  this  instance. 

Sec.  318.    Clothing  villainy  with  holy  writ. — 

"Glo.     .     .     .     And  thus  I  clothe  my  naked  villainy 
With  old  odd  ends,  stol'n  forth  of  holy  writ; 
And  seem  a  saint,  when  most  I  play  the  devil."4 

This  verse  is  frequently  quoted  by  lawyers,  to  meet  the 
conditions  in  lawsuits,  when  an  attorney  or  a  party  to  the 
cause  assumes  a  holy  attitude  as  a  cloak  for  some  piece  of 
villainy.  The  Poet  seemed  to  possess  a  natural  dislike 
for  hypocrisy  and  never  hesitated  to  express,  in  no  un- 
measured terms,  his  contempt  for  those  who  assumed  a  fair 
seeming  outside,  for  the  purpose  of  winning  favor,  or  by 
feigning  to  be  better  than  they  really  were.  A  false  pre- 
tender to  virtue  and  piety,  or  one  who  assumes  such  virtues 
when  he  has  them  not,  is,  indeed,  an  object  of  contempt, 
to  all  alike,  so  in  presenting  this  side  of  human  nature,  the 
Poet  but  performs  his  object,  of  expressing  the  universal 
truth  in  human  nature,  as  he  sees  it. 


aKmg  Richard  III,  Act  I,  Scene  III. 

2  Coke,  Litt.  247. 

3  4  Coke,  124. 

Lord  Stanley  advises  Queen  Elizabeth,  in  King  Richard  III: 
"Stan.  .  .  .  Bear  with  her  weakness,  which,  I  think,  pro- 
ceeds, From  wayward  sickness,  and  no  grounded  malice."  (Act 
I,  Scene  III.) 

4  King  Richard  III,  Act  I,  Scene  III. 


RICHARD   THE  THIRD.  349 

Sec.  319.    Warrant  no  protection  against  murder. — 

"1  Murd.     What:  art  thou  afraid? 

2  Murd.  Not  to  kill  him,  having  a  warrant  for  it ;  but  to 
be  damn'd  for  killing  him,  from  the  which  no  war- 
rant can  defend  me."1 

The  murderer  here  replies  that  he  is  not  afraid  of  the 
law  of  man,  for  being  armed  with  his  warrant  for  the 
death  of  the  prisoner,  he  is  legally  entitled  to  protection 
for  his  act.  This,  of  course,  is  true,  as  matter  of  law.2 
But  a  willful  murder  is  never  justified  because  of  the 
possession  of  a  warrant  by  the  officer  doing  the  killing.3 
It  is  not  so  much  the  law  of  man,  as  it  is  the  law  of  God, 
that  the  murderer  fears,  in  this  instance,  however,  for  he 
is  not  without  some  religious  scruples  and  knows  the  war- 
rant can  furnish  him  no  protection  for  the  violation  of 
the  Divine  law  against  murder.4 

Sec.  320.    Guilty  conscience. — 

"1  Murd.  So  when  he  opens  his  purse  to  give  us  our  re- 
ward, thy  conscience  flies  out. 

2  Murd.  I'll  not  meddle  with  it,  it  is  a  dangerous  thing, 
it  makes  a  man  a  coward ;  a  man  cannot  steal,  but  it 
accuseth  him;  a  man  cannot  swear  but  it  checks 
him;   a   man   cannot  lie   with  his  neighbor's  wife, 

1King  Richard  III,  Act  I,  Scene  IV. 

2 1  Bishop's  Cr.  Proc.  187-193. 

3 1  Bishop's  Cr.  Proc.  206-218. 

'Exodus,  XX,  13. 

A  capital  sentence,  in  England,  has  always  been  carried  into 
effect  by  warrant.     1  Bishop's  New  Cr.  Proc,  Sec.  1336. 

Before  commission  of  the  murder,  when  they  go  to  Gloster,  for 
the  warrant,  the  first  murderer  said:  "We  are  my  lord;  and 
come  to  have  the  warrant."  And  he  tells  them:  "Glo.  .  .  . 
I  have  it  here  about  me."     (Act  I,  Scene  III.) 

Menenius  tells  the  tribunes  of  the  people,  in  Coriolanus,  on 
their  condemning  Coriolanus,  untried:  "Men.  Do  not  cry  havoc, 
where  you  should  but  hunt,  with  modest  warrant."  (Act  III, 
Scene  I.) 


350  THE  LAW  IN  SHAKESPEARE. 

but  it  detects  him :  Tis  a  blushing,  shame-faced 
spirit,  that  mutinies  in  a  man's  bosom;  it  fills  one 
full  of  obstacles."1 

Conscience,  in  the  law,  is  that  faculty  which  leads  us  to 
decide  as  to  our  actions,  condemning  that  which  is  wrong 
and  commending  the  right.  In  other  words,  it  is  self- 
knowledge,  or  the  principle  which  enables  us  to  determine 
between  right  and  wrong.  The  law,  being  based  upon 
reason,  pays  the  greatest  deference  to  the  individual  con- 
science, so  that  what  is  known  as  the  conscience  clause  of 
criminal  laws,  exempts  those  who  have  conscientious 
scruples  against  the  death  penalty,  from  jury  service.2 
Courts  of  equity  are  said  to  be  "courts  of  conscience,"  and 
those  who  act  in  obedience  to  the  dictates  of  reason  or  con- 
science, are  protected  in  the  law.  The  murderer,  before 
commission  of  the  crime,  acts  in  violation  of  such  dic- 
tates and  is  entitled  to  no  law  for  such  an  act,  because 
the  law  runs  with  and  not  against  the  conscience. 

The  above  lines  and  others  wherein  the  Poet  presents 
the  promptings  of  the  conscience  to  the  criminal,  are  fre- 
quently quoted  in  lawyers'  work. 


*King  Richard  III,  Act  I,  Scene  IV. 
8  2  Kent's  Comm.   13,  ct  sub. 

Before  the  sleeping  Clarence  awakes,  the  2d  murderer  said: 
"'Faith,  some  certain  dregs  of  conscience  are  yet  within  me." 
(King  Richard   III,  Act  I,   Scene   IV.) 

Queen  Margaret  tells  Richard,  in  King  Richard  III:  "Q.  Mar. 
.  .  .  .  The  worm  of  conscience  still  begnaw  thy  soul."  (Act 
I,  Scene  III.) 

Speaking  of  the  tyrant,  Richard,   Oxford   is  made  to  say,   in 
King  Richard  III: 
"Oxf.     Every  man's  conscience  is  a  thousand  swords. 

To  fight  against  that  bloody  homicide."     (Act  V,  Scene  II.) 

Speaking,  after  awakening  from  his  dream,  before  the  battle 
with  Richmond,  Richard  III  said:  "K.  Rich.  My  conscience 
hath  a  thousand  several  tongues,  And  every  tongue  brings  in  a 
several  tale,  And  every  tale  condemns  me  for  a  villain."  (Act 
V,  Scene  III.) 


RICHARD  THE  THIRD.  351 

In  bidding  farewell  to  his  friends,  before  his  execution,  Buck- 
ingham tells  them,  in  King  Henry  VIII:  "Buck.  .  .  .  And. 
if  I  have  a  conscience,  let  it  sink  me,  Even  as  the  axe  falls,  if 
I  be  not  faithful."     (Act  II,  Scene  I.) 

The  duke  of  Suffolk,  talking  with  the  lord  Chamberlain,  as  to 
the  contemplated  divorce  of  the  king  and  his  attraction  for  Anne 
Boleyn,  said: 

"Cham.  It  seems,  the  marriage  with  his  brother's  wife,  has 
crept  too  near  his  conscience. 

Suff.  No,  his  conscience  has  crept  too  near  another  lady." 
(Act  II,  Scene  II.) 

Urging  his  conscience  as  a  reason  to  excuse  his  infatuation  for 
Anne  Boleyn,  King  Henry  VIII  said:  "Would  it  not  grieve  an 
able  man  to  leave  so  sweet  a  bed  fellow?  But,  conscience,  con- 
science, O,  'tis  a  tender  place,  and  I  must  leave  her."  (Act  II, 
Scene  II.) 

Speaking  with  Cardinal  Wolsey,  as  to  his  contemplated  divorce 
suit,  King  Henry  VIII  said:  "K.  Hen.  O  my  Wolsey,  The  quiet 
of  my  wounded  conscience;  Thou  art  a  cure  fit  for  a  king."  (Act 
II,  Scene  II.) 

And  again,  the  King  said:  "K.  Hen.  This  respite  shook  the 
bosom  of  my  conscience,  enter'd  me,  yea,  with  a  splitting  power, 
and  made  to  tremble  the  region  of  my  breast." 

"Thus  hulling  in  the  wild  sea  of  my  conscience,  I  did  steer 
toward  this  remedy,  whereupon  we  are  now  present  here  together ; 
that's  to  say,  I  meant  to  rectify  my  conscience."  (Act  II, 
Scene  IV.) 

After  his  fall  Cardinal  Wolsey  said,  in  regard  to  the  charges 
against  him:  "Wol.  I  feel  within  me,  a  peace  above  all  earthly 
dignities,  a  still  and  quiet  conscience."     (Act  III,  Scene  II.) 

And  speaking  of  Lord  Chancellor  More,  chosen  in  his  place,  he 
said:  "May  he  continue  long  in  his  highness'  favor,  and  do 
justice  for  truth's  sake,  and  his  conscience."     (Idem.) 

Speaking  of  the  beauty  of  Anne  Boleyn,  in  King  Henry  VIII,  a 
gentleman  (?)  said:  "Our  king  has  all  the  Indies  in  his  arms, 
And  more,  and  richer,  when  he  strains  that  lady:  I  cannot  blame 
his  conscience."     (Act  IV,  Scene  I.) 

Cranmer  tells  his  peers,  in  the  Council  Chamber,  in  King 
Henry  VIII:  "Cran.  .  .  .  That  I  shall  clear  myself,  Lay  all 
the  weight  ye  can  upon  my  patience,  I  make  as  little  doubt,  as 
you  do  conscience  in  doing  daily  wrongs."     (Act  V,  Scene  II.) 


552  THE  LAW  IN  SHAKESPEARE. 

3ec.  321.    Reward.— 

"I*  Murd.  Remember  our  reward,  when  the  deed 's  done, 
2 ?  Murd.     Zounds,  he  dies ;  I  had  forgot  the  reward. ' n 

A  reward  is  an  offer  of  recompense,  given  by  authority 
3f  law,  for  the  performance  of  some  act  for  the  public 
good,  which  is  to  be  paid  when  the  act  is  performed.2  A 
reward  may  be  either  offered  by  the  Government,  or  by 
a  private  person  and,  of  course,  in  this  instance  it  was 
the  latter  case. 

The  reward  was  recognized,  at  common  law,  as  such 
a  potent  factor  in  its  effect  upon  the  one  desirous  of  the 
reward,  that  informers,  entitled  to  reward,  were  not  com- 
petent witnesses,  in  actions  wherein  the  conviction  or 
acquittal  of  a  person,  being  tried,  depended  on  the  evi- 
dence of  such  informer.3 


Aaron,  the  Moor,  said  to  Lucius,  in  Titus  Andronicus: 
"Aar.     I  know  thou  art  religious, 

And  hast  a  thing  within  thee,  called  conscience." 

(Act    V,    Scene    I.) 

Contemplating  the  effect  of  his  play,  upon  his  Uncle,  Hamlet 
said:  "Ham.  .  .  .  The  play's  the  thing,  Wherein  I'll  catch 
the  conscience  of  the  king."     (Act  II,  Scene  II.) 

And  after  discoursing  upon  the  uncertainties  of  that  some- 
thing after  death  which  "must  give  us  pause,"  Hamlet  concludes: 
"Thus  conscience  does  make  cowards  of  us  all;  And  thus  the 
native  hue  of  resolution,  Is  sicklied  o'er  with  the  pale  cast  of 
thought."     (Act  III,  Scene  I.) 

1  King  Richard  TIT,  Act  I,  Scene  IV. 

2  4    Bl.    Comm.    294. 

31   Phillipps,  Evid.,   92,   99. 

Speaking  of  Buckingham's  arrest,  King  Richard  asks,  in  Rich- 
ard III: 

"K.  Rich,    Hath  any  well-advis'd  friend  proclaim'd 
Reward  to  him  that  brings  the  traitor  in?" 

(Act  IV,  Scene  IV.) 


RICHARD  THE  THIRD.  353 

Sec.  322.    Death  without  lawful  conviction. — 

"Clar.     .     .     .     Before  I  be  convict  by  course  of  law, 
To  threaten  me  with  death,  is  most  unlawful."1 

To  take  away  or  deprive  anyone  of  any  right,  except  by 
course  of  law,  is  most  unlawful,  but  of  all  the  rights  of  the 
citizen,  the  right  of  personal  security  is  the  greatest  and 
hence,  to  take  one's  life,  except  by  "course  of  law,"  is 
the  greatest  injustice  that  can  be  offered  one.  A  convic- 
tion, in  practice,  is  the  legal  proceeding,  by  record,  by 
which  the  guilt  of  a  person  accused  of  crime,  is  legally 
ascertained  and  upon  which  the  sentence  or  judgment  is 
founded.2  It  is  necessary  that  a  lawful  conviction  precede 
a  judgment  or  sentence  and  of  course,  to  go  clandestinely 
to  a  prison  and  take  one,  a  prisoner,  without  trial,  or  law- 
ful conviction  and  take  his  life,  is  the  rankest  injustice, 
as  Clarence  contended  with  his  murderers. 

Sec.  323.    Divine  law  against  murder. — 

"Clar.     Erroneous  vassal :  the  great  King  of  kings 
Hath  in  the  table  of  his  law  commanded, 
That  thou  shalt  do  no  murder;  Wilt  thou  then 
Spurn  at  his  edict,  and  fulfill  a  man's? 
Take  heed,  for  he  holds  vengeance  in  his  hand, 
To  hurl  upon  their  heads  that  break  his  law."3 

When  the  murderers  told  Clarence  that  they  were  to 
kill  him,  in  accordance  with  the  order  of  the  King,  he 
confronts  them  with  the  ten  commandments  and  espe- 
cially the  commandment  against  murder,4  and  this  law 
or  edict  he  cites  as  the  law  of  "the  great  King  of  kings." 
As  compared  to  the  mere  order  of  the  king,  the  law  of 


'King  Richard  III,  Act  I,  Scene  IV. 
21  Bishop's  Cr.  Law,  223. 

3  King  Richard  III,  Act  I,  Scene  IV. 

4  Exodus,  20,  13. 

The  murderer  asks  Clarence:  "1  Murd.  How  can'st  thou 
urge  God's  dreadful  law  to  us,  When  thou  hast  broke  it  in  such 
dear  degree?"     (Act  I,  Scene  IV.) 


354  THE  LAW  IN  SHAKESPEARE. 

the  Lord,  given  to  Moses  on  Mount  Sinai,  is  invoked  by 
Clarence,  with  the  plea  that  if  this  Divine  law  is  violated, 
the  murderers  had  best  take  heed,  for  the  vengeance  of  the 
Lord  will  be  hurled  upon  their  heads  that  break  his  law. 

Sec.  324.    Benefit  of  sanctuary. — 

"Buck.     .     .     .     You    break    not    sanctuary    in    siezing 
him. 
The  benefit  thereof  is  always  granted 
To  those  whose  dealings  have  deserv'd  the  place, 
And  those  who  have  the  wit  to  claim  the  place : 
This  prince  hath  neither  claimed  it,  nor  deserv'd  it: 
And  therefore,  in  mine  opinion,  cannot  have  it : 
Then,  taking  him  from  thence  that  is  not  there, 
You  break  no  privilege  nor  charter  there. 
Oft  have  I  heard  of  sanctuary  men; 
But  sanctuary  children,  ne'er  till  now."1 

The  right  of  sanctuary  is  here  referred  to  and  Buck- 
ingham contends  that  the  privilege  or  benefit  of  sanctuary 
does  not  extend  to  children,  but  only  to  adults  who  have 
the  wit  to  claim  the  privilege.  Of  course  this  is  a  narrow 
construction  of  the  law.  The  right  of  sanctuary,  at  com- 
mon law,  was  the  right  to  claim  exemption  from  service 
of  criminal  or  civil  process  while  the  person  against  whom 
such  process  was  addressed,  was  the  inmate  of  a  religious 
house,  or  sanctuary.  Complete  immunity  to  the  civil 
law  was  afforded  by  this  privilege.2  Religious  sanctuaries 
were  quite  common,  in  Europe,  at  an  early  day  and  they 
afforded  complete  protection  to  all  persons  from  arrest, 
whether  accused  of  crime,  or  pursued  for  debt.3 

But  it  was  always  essential  to  plead  the  right  of  sanc- 
tuary and  if  a  criminal  who  had  resorted  to  a  sanctuary, 
neglected  to  claim  the  exemption  from  the  civil  laws,  he 


1  King  Richard  III,  Act  III,  Scene  I. 

■  Bouvier's  Law  Dictionary. 

'Under  the  Anglo-Saxons,  the  immunity  indulged  to  places 
of  worship  was  both  humane  and  politic,  for  it  avoided  the 
shedding  of  blood.     I  Reeve's  History  Eng.  Law,  p.  198. 


RICHARD  THE  THIRD.  355 

was  held  to  have  waived  the  benefit  of  sanctuary,  so  to  this 
extent  the  claim  of  Buckingham  was  correct,  as  presented 
by  the  Poet.1 

Sec.  325.    Movables.— 

"Glo.     .     .     .     And,  look,  when  I  am  king,  claim  thou 
of  me 
The  earldom  of  Hereford,  and  all  the  movables 
Whereof  the  king,  my  brother,  was  possess'd."2 

Richard  here  promises  Buckingham  all  the  personal 
property  and  chattels  of  which  the  King  died  possess'd, 
as  movables,  in  law,  are  those  things  which  attend  the 
person  of  the  owner,  in  contradistinction  to  those  things 
which  are  immovable,  or  fixed.3  This  is  peculiarly  a  law 
term  and  is  rarely  used  by  others  than  lawyers,  because 
of  its  technical  meaning. 


'Ill  Reeve's  History  Eng.  Law,  p.  331;  IV  Reeve's  History 
Eng.  Law,  p.  253;  Bro.  Sanct.  11.  By  26  Henry  VIII,  c.  13,  the 
privilege  of  sanctuary  was  denied  to  those  guilty  of  high  trea- 
son, and  by  other  statutes  during  this  reign,  those  claiming 
sanctuary  were  subjected  to  certainly  limitations  and  required, 
while  enjoying  the  privilege,  to  wear  certain  insignia,  or  badges 
to  distinguish  them.     IV  Reeve's  Hist.  Eng.  Law,  p.  469. 

Cardinal  Wolsey,  after  his  disgrace,  sought  the  benefit  of 
sanctuary,  at  the  Abbey  of  Leicester,  in  King  Henry  VIII,  as 
follows:  "Grif.  .  .  .  O  father  Abbot,  an  old  man,  broken 
with  the  storms  of  state,  Is  come  to  lay  his  weary  bones  among 
ye;  give  him  a  little  earth  for  charity."     (Act  IV,  Scene  I.) 

Aufidius  is  made  to  say  in  Coriolanus: 
"Auf.     .     .     .     nor  sleep,  nor  sanctuary,  being  naked,  sick:   nor 
fane,  nor  Capitol 
The  prayers  of  priests,  nor  times  of  sacrifice, 
Embarquements  all  of  fury,  shall  lift  up 
Their  rotten  privilege  and  custom  'gainst 
My  hate  to  Marcius."  (Act  I,  Scene  IX.) 

2  King  Richard    III,   Act   III,   Scene   I. 

3  2  Bl.  Comm.  384;  2  Stephen's  Comm.  67;  Tiedeman,  R.  P. 
(3d  ed.),  Sec.  1. 


356  THE  LAW  IN  SHAKESPEARE. 

Sec.  326.     Bigamy.— 

"Buck.     ...     A  beauty-waning  and  distressed  widow, 
Even  in  the  afternoon  of  her  best  days, 
Made  prize  and  purchase  of  his  wanton  eye, 
Seduc'd  the  pitch  and  height  of  all  his  thoughts 
To  base  declension  and  loath'd  bigamy."1 

Because  of  the  former  contract,  by  King  Edward,  to 
marry  the  Lady  Lucy,  Buckingham  here  urges  that  he 
was,  at  law,  her  lawful  husband  and  hence  his  later  mar- 
riage with  Lady  Gray,  was  illegal,  since  he  was  the  hus- 
band of  a  living  wife  already.  This  conclusion,  of  course, 
is  far  fetched,  but  it  was  used  for  the  purpose. 

Bigamy  is  the  willful  contracting  of  a  second  marriage, 
when  the  contracting  party  knows  that  the  first  is  still 
subsisting.2  The  construction  adopted  by  Buckingham, 
in  this  verse,  is  rather  that  of  the  canonists,  who  treated 
it  as  bigamy  to  have  once  married  a  widow.3 

Sec.  327.    Levitical  law  against  niece  marrying  uncle. — 

"K.  Rich.  Tell  her,  the  king,  that  may  command,  en- 
treats. 

Q.  Eliz.  That  at  her  hands,  which  the  king's  King  for- 
bids."4 


Later,  in  the  same  play,  Buckingham,  in  vain,  urges  his  claim 
to  "The  earldom  of  Hereford  and  the  movables,"  which  had 
been  promised  him.     (King  Richard  III,  Act  IV,  Scene  II.) 

'King  Richard  III,  Act  III,  Scene  VII. 

21  Russell,  Crimes,  187;   2  Kent's  Comm.  69. 

3  6  Bacon's  Abr.,  454,  500. 

For  effect,  in  the  spiritual  court,  of  the  espousal  agreement 
made  by  Edward,  with  Lady  Lucy,  see  6  Bacon's  Abr.,  p.  461. 

Urging  the  illegality  of  King  Edward's  marriage  to  Elizabeth 
Grey,  because  of  the  pre-contract  of  marriage  by  the  King  to 
Lady  Lucy,  Buckingham  contends,  in  King  Richard  III:  "Buck. 
You  say,  that  Edward  is  your  brother's  son;  So  say  we  too,  but 
not  by  Edward's  wife:  For  first,  he  was  contract  to  Lady  Lucy." 
(Act  III,   Scene  VII.) 

4  King  Richard   III,  Act  IV,   Scene   IV. 


RICHARD  THE  THIRD.  357 

In  this  attempt  to  induce  the  mother  to  deliver  her 
daughter  into  the  hands  of  the  murderer  of  her  sons, 
Richard  calculates,  without  reckoning  with  the  mother 
instinct.  After  violating  every  sacred  thing  on  earth,  the 
Poet  hurls  back,  the  proffed  advantage  offered  the  mother, 
for  her  daughter's  preferment  in  marriage  with  the  mur- 
derer. Other  relations  could  be  violated,  with  impunity. 
Not  the  eternal  source  of  humanity.  Richard's  dialectics 
were  puerile  against  this  shield  of  nature. 

The  mother  points  him  to  the  Levitical  law,  "Thou 
shalt  not  uncover  the  nakedness  of  thy  father's  brother,"1 
as  a  Divine  impediment  which  would  forbid  her  daughter 
from  contracting  such  an  illegal  marriage,  for  this,  as  she 
tells  him,  "the  king's  King  forbids." 

Sec.  328.    Richard  III'  inherited  criminal  instinct. — 

"Duch.     .     .     .     Thou   cam'st   on    earth   to    make   the 
earth  my  hell. 
A  grievous  burden  was  thy  birth  to  me; 
Tetchy  and  wayward  was  thy  infancy; 
Thy    school-days,    frightful,    desperate,    wild    and 

furious ; 
Thy  prime  of  manhood,  daring,  bold,  and  venturous; 
Thy  age  confirm'd,  proud,  subtle,  sly  and  bloody, 
More  mild,  but  yet  more  harmful,  kind  in  hatred: 


Leviticus,  Ch.  XVIII,  14. 

For  construction  and  application  of  this  spiritual  law,  in  both 
the  civil  and  ecclesiastic  courts,  in  Europe,  see  6  Bacon's  Abr., 
pp.  454,  500. 

Replying  to  King  Richard's  suit,  for  her  daughter's  hand, 
Queen  Elizabeth  asks  him: 

"<?.  Eliz.    What  were  I  best  to  say?  her  father's  brother 
Would  be  her  lord?  Or  shall  I  say,  her  uncle? 
Or,  he  that  slew  her  brothers  and  her  uncles? 
Under  what  title  shall  I  woo  for  thee? 
That  God,  the  law,  my  honour,  and  her  love, 
Can  make  seem  pleasing  to  her  tender  years?" 

(Act   IV,    Scene   IV.) 


358  THE  LAW  IN  SHAKESPEARE. 

What  comfortable  hour  can'st  thou  name, 
That  ever  grac'd  me  in  thy  company?"1 

From  these  lines  it  is  apparent  that  the  Poet,  in  his 
representation  of  the  character  of  Richard,  bases  his  crim- 
inal instincts  upon  what,  in  modern  times,  would  be 
known  to  the  law  as  inherited  neurosis.  Tracing  his  in- 
herited criminal  instinct,  the  criminologist  has  said:  "His 
grandfather  is  executed  by  Henry  V,  for  villainous  treach- 
ery to  his  king,  hired  by  French  money  for  the  act,  yet 
with  the  secret  intention  of  placing  one  of  his  own  blood 
on  the  throne.  Richard's  father  spent  his  whole  life  in 
agitating  and  plotting  to  get  his  presumed  right  to  the 
throne  recognized  in  which  he  finally  succeeded,  until  he 
was  killed  in  the  battle  of  Sandal  after  having  been  taken 
prisoner  by  Henry  VI,  Queen  Margaret  and  Clifford. 
That  such  a  mind,  restless,  intriguing,  and  greedy  after 
power,  might  be  inherited  by  the  son,  Richard,  and  in 
him  appear  in  a  more  marked  degree,  is,  according  to  the 
law  of  heredity,  quite  a  near  possibility,  and  may  at  least 
explain  a  certain  inclination  to  crime  in  him."2 

1  King  Richard  III,  Act  IV,  Scene  IV. 

2  Goll's  Criminal  Types  in  Shakespeare,  pp.  168,  169. 

Queen  Margaret  refers  to  Richard's  natural  criminality,  as 
follows,  in  King  Richard  III:  "Q-  Mar.  .  .  .  Thou  that  wast 
seal'd  in  thy  nativity,  The  slave  of  nature  and  the  son  of  hell." 
(Act  I,  Scene  III.) 

The  Duchess  of  York  thus  bewails  the  birth  of  her  son,  Rich- 
ard, in  King  Richard  III: 

"Duch.     .     .     .     O  my  accursed  womb,  the  bed  of  death; 
A  cockatrice  hast  thou  hatch'd  to  the  world, 
"Whose  unavoided  eye  is  murderous."     (Act  IV,  Scene  I.) 
Queen  Margaret  taunts  the  Duchess  of  York,  with  having  given 
birth  to  such  a  criminal  as  Richard  III,  as  follows: 
"Q.  Mar.     .     .     .    From  forth  the  kennel  of  thy  womb  hath  crept, 
A  hell-hound,  that  doth  hunt  us  all  to  death: 
That  dog,  that  had  his  teeth  before  his  eyes, 
To  worry  lambs,  and  lap  their  gentle  blood; 
That  foul  defacer  of  God's  handiwork; 


RICHARD  THE  THIRD.  359 

Sec.  329.    Demise. 

"Q.  Eliz.     .     .     .     Tell  me  what  state,  what  dignity,  what 
honour, 
Canst  thou  demise  to  any  child  of  mine?"1 

The  Queen  here  asks  to  know  what  conveyance  or  grant 
Richard  can  make  to  any  of  her  children,  which  will  ma- 
terially assist  them.  A  demise,  at  law,  is  a  posthumous 
grant,  either  in  fee,  for  life,  or  for  years.2  Unless,  upon 
his  dissolution,  her  child  would  be  benefited,  there  is 
apparently  no  reason  for  the  union  asked  for. 

Sec.  330.     Corrupted  justice. — 

"Buck.     .     .     .     Vaughan  and  all  that  have  miscarried 
By  underhand  corrupted  foul  injustice, 

Even  for  revenge  mock  my  destruction."3 
After  having  assisted  Richard  to  rise  to  the  kingdom  by 
the  crimes  that  made  it  possible  for  him  to  possess  the 
crown,  and  after  he  had  assisted  him  to  corrupt  the  foun- 
tains of  justice  and  trample  under  foot  the  rights  of  oth- 
ers, it  is  a  just  retribution  that  brings  Buckingham  to  a 
realization  of  what  it  is  to  prosper  by  "underhand  cor- 
rupted  foul   injustice."       It   is   no   longer  the   rights   of 


That  excellent  grand  tyrant  of  the  earth, 

That  reigns  in  galled  eyes  of  weeping  souls, 

Thy  womb  let  loose,  to  chase  us  to  our  graves." 

(Act  IV,  Scene  IV.) 

The  Duchess  of  York,  tells  Richard  III,  as  he  goes  to  war: 
"Duch.     Either  thou  wilt  die,  by  God's  just  ordinance, 
Ere  from  this  war  thou  turn  a  conqueror, 
Or  I  with  grief  and  extreme  age  shall  perish, 
And  never  look  upon  thy  face  again."     (Act  IV,  Scene  IV.) 

*King  Richard  III,  Act  IV,  Scene  IV. 

2  2  Bouvier's  Inst.,  1774,  et  seq. 

Of  course  the  Queen  here,  does  not  concede  that  Richard  is  the 
lawful  king,  but  treats  his  reign  as  a  usurpation  of  the  right  to 
the  crown,  hence  he  could  not  transmit  such  right,  on  his  death. 

3  King  Richard  III,  Act  V,  Scene  I. 


360  THE  LAW  IN  SHAKESPEARE. 

others  that  he  sees  denied  them,  but  it  is  now  his  very 
own  that  is  threatened;  his  own  life  is  in  the  way  of  the 
tyrant  who  has  concluded  to  murder  him,  rather  than 
comply  with  his  promise  to  give  him  the  lands  and  mov- 
ables of  the  earl  of  Hereford,  for  his  assistance  in  the 
criminal  elevation  he  had  risen  to.  Buckingham  cannot 
now  seek  justice,  after  denying  it  to  others  and  must 
suffer  loss  of  his  own  life  by  the  same  foul  "corrupted 
injustice"  he  had  dealt  out  to  others.1 

Sec.  331.    Swords  as  laws. — Under  Richard's  reign. — 

i(K.  Rich.     .     .     .     Conscience  is  but  a  word  that  cow- 
ards use, 
Devis'd  at  first  to  keep  the  strong  in  awe; 
Our  strong  arms  be  our  conscience,  swords  our  law."2 

In  keeping  with  the  whole  course  of  Richard's  career, 
and  the  criminal  instinct,  which  has  as  a  basis,  the  dis- 
regard of  law  and  others  rights,  the  Poet  here  sums  up 
the  whole  total  of  Richard's  character.  He  had,  from 
the  first,  known  no  law,  but  his  own  ambition  and  greed ; 
the  rights  of  others  were  to  him,  but  as  an  obstacle  to  be 
overcome,  when  in  the  way  of  gratification  of  his  own 
ambition;  devoid  of  conscience,  he  used  the  strong  arm 
of  the  kingdom,  to  further  his  own  self-interests  and 
knew  no  law,  but  that  of  the  sword.  A  fitting  close,  is 
this  summing  up  of  the  character  of  this  kingly  outlaw, 
who  decried  the  law  and  the  rights  of  his  fellows;  ridi- 
culed conscience,  and  in  lieu  thereof,  advocated  nought 
but  "strong  arms"  and  "swords"  for  "our  law." 


1An  act  is  said  to  be  corruptly  done,  when  it  is  done  with  the 
intent  to  give  some  advantage  inconsistent  with  official  duty 
or  the  lawful  rights  of  others.     Bouvier's  Law  Dictionary. 

Replying  to  the  entreaties  of  the  Cardinals  to  place  her  cause 
in  the  King's  hands,  Queen  Katherine  said:  "Q.  Kath.  .  .  . 
Heaven  is  above  all  yet;  there  sits  a  Judge,  that  no  king  can 
corrupt."     (Henry  VIII,  Act  III,  Scene  I.) 

2  King  Richard  III,  Act  V,  Scene  III. 


CHAPTER  XXV. 

"KING  HENRY  THE  EIGHTH." 

Sec.  332.  Privity. 

333.  Wasting  manors  in  military  preparations. 

334.  Buckingham's  trial  for  treason. 

335.  "Come  into  Court." 

336.  Pleading  cause. 

337.  Session  of  Court. 

338.  Challenging  prejudiced  Judge. 

339.  Retainers. 

340.  Appearance  in  Court. 

341.  Under  "hand  and  seal." 

342.  Motion  to  dismiss  appeal. 

343.  Dilatory  pleas. 

344.  Adjournment  of  Court. 

345.  Trial  at  Law. 

346.  Inventory. 

347.  Commission  for  office. 

348.  Writ  of  Praemunire. 

349.  Decree  of  divorce  from  Katherine. 

350.  Simony. 

351.  Purging  one's  self  of  guilt. 

352.  Verdict  based  on  perjury. 

353.  Accusing  one,  "face  to  face." 

354.  Accusing  Counselor. 

355.  Acting  as  both  Judge  and  Juror. 

356.  Crime  of  heresy. 

357.  Appeal  by  King's  ring. 

Sec.  332.    Privity.— 

"Buck.     Why  the  devil, 

Upon  this  French  going-out,  took  he  upon  him, 
Without  the  privity  o'  the  king,  to  appoint 
Who  should  attend  on  him?"1 

Privity,  in  the  law,  is  the  mutual  or  successive  relation- 
ship to  the  same  rights  of  property.2    There  is  privity  of 

*King  Henry  VIII,  Act  I,  Scene  I. 
1  Bouvier's  Law  Dictionary. 

(361) 


362  THE  LAW  IN  SHAKESPEARE. 

contract,  which  is  the  relation  existing  between  two  con- 
tracting parties,1  and  the  privity  of  estate,  which  is  the 
relationship  existing  between  those  being  interested  in 
the  same  lands,  as  landlord  and  tenant.2 

Buckingham  uses  the  word  in  the  popular,  rather  than 
the  legal  meaning,  of  consent  or  concurrence,  meaning  to 
say  that  the  Cardinal,  in  this  instance,  had  acted  without 
the  concurrence  or  consent  of  the  King. 

Sec.  333.    Wasting  manors  in  military  preparations. — 

"Buck.     0,  many 

Have  broke  their  backs  with  laying  manors  on  'em 
For  this  great  journey.    What  did  this  vanity 
But  minister  communication  of 
A  most  poor  issue/'3 

The  subject  of  discussion  here  is  the  unprofitable  result 
of  the  recent  war  with  France  and  Abergavenny  observes 
that  he  had  kinsmen 

".     .     .     three  at  least,  that  have 
By  this  so  sicken'd  their  estates  that  never 
They  shall  abound  as  formerly." 

Buckingham  replies,  with  a  play  on  the  legal  term 
"manor,"  meaning  that  many  of  the  English  lords  had 
assumed  such  military  authority  and  preparations  as  to 
squander  their  estates,  or  waste  their  manors  in  the  war 
with  France. 

A  manor,  in  English  law,  is  a  freehold  estate,  held  by 
the  lord  of  the  manor,  who  is  entitled  by  immemorial 
custom,  to  maintain  a  tenure  between  himself  and  the 
copyhold  tenants,  whereby  a  feudal  relation  is  maintained 

1Viner,  Abr.;   Lawson,  Contracts   (2d  ed.),  276,  305. 
Tiedeman,  R.  P.   (3d  ed.),  sees.  138,  157. 

The  Friar,  in  describing  the  causes  of  the  death  of  Juliet  and 
Romeo,  said:  "All  this  I  know,  and  to  the  marriage,  Her  nurse 
is  privy."     (Act  V,  Scene  III.) 

'King  Henry  VIII,  Act  I,  Scene  I. 


HENRY  THE  EIGHTH.  363 

between  them.1  But  as  sub-infeudation  was  abolished,  in 
England,  by  the  statute  qui  emptores/  and  no  manor 
could  arise  by  operation  of  law,  since  that  date,  it  follows 
that  all  existing  manors  must  trace  their  existence  to  a 
time  preceding  the  enactment  of  this  statute.3 

Sec.  334.    Buckingham's  trial  for  treason. — 

"1  Gent.     .     .     .     The  great  duke 

Came  to  the  bar;  where,  to  his  accusations, 

He  pleaded  still  not  guilty,  and  alleg'd 

Many  sharp  reasons  to  defeat  the  law. 

The  king's  attorney,  on  the  contrary, 

Urg'd  on  the  examinations,  proofs,  confessions 

Of  divers  witnesses;  which  the  duke  desir'd 

To  him  brought,  viva  voce,  to  his  face: 

At  which  appear'd  against  him,  his  surveyor; 

Sir  Gilbert  Peck,  his  chancellor;  and  John  Court 

Confessor  to  him;  with  that  devil  monk, 

Hopkins,  that  made  this  mischief. 

All  these  accused  him  strongly ;  which  he  fain 
Would  have  flung  from  him,  but,  indeed,  he  could 

not: 
And  so  his  peers,  upon  this  evidence, 
Have  found  him  guilty  of  high  treason.     Much 
He  spoke,  and  learnedly,  for  life :  but  all 
Was  either  pitied  in  him,  or  forgotten. 

When  he  was  brought  again  to  the  bar, — to  hear 
His  knell  rung  out,  his  judgment, — he  was  stirr'd 
With  such  an  agony,  he  sweat  extremely, 
And  something  spoke  in  choler,  ill  and  hasty: 
But  he  fell  to  himself  again,  and,  sweetly, 
In  all  the  rest  show'd  a  most  noble  patience."4 

This  narration  of  the  trial  of  the  duke  of  Buckingham, 
for  treason,  is  the  same  as  the  histories  of  the  trial  give 

1Tiedeman,  R.  P.    (3d  ed). 

2  This  statute  was  passed  during  the  reign  of  Edw.  I. 

8  Tiedeman,  R.  P.  supra. 

*  King  Henry  VIII,  Act  II,  Scene  I. 


364  THE  LAW  IN  SHAKESPEARE. 

it.1  The  conviction  of  the  Duke  occurred  in  the  tenth 
year  of  the  King's  reign,  upon  the  most  flimsy  pretexts, 
such  as  the  charge  that  he  had  declared  all  the  acts  of 
Henry  VII  to  be  improperly  done.  To  encompass  the 
conviction,  the  Chief -Justice  held  that  "if  one  intend  the 
death  of  the  king  it  is  high  treason,  for  that  he  is  the 
head  of  the  commonwealth,"  though  no  act  be  done,  and 
the  guilty  intent  to  commit  the  treason,  was  established 
by  words  alone.2  History  records  that  the  execution  of 
this  Duke  was  obtained  by  the  pressure  of  the  royal 
power,  without  a  pretence  of  legal  cause,3  and  certain  it 
is  that  no  act  since  the  commencement  of  this  reign,  when 
the  tyranny  of  the  Star  Chamber  was  inaugurated,  to 
coerce  and  overrule  the  peers  and  members  of  parliament, 
so  aroused  and  terrified  the  populace  and  made  the  way 
for  the  arbitrary  power,  which  later  culminated  in  the 
King's  divorces  and  trampling  under  foot  the  sacred  laws 
of  both  church  and  state,  and  the  terrorizing  of  the  peo- 
ple, to  accomplish  his  arbitrary  will,  as  this  execution 
of  the  duke  of  Buckingham,  in  the  name  of  law.4 

Sec.  335.     "Come  into  Court."— 

"Scribe.     Say,  Henry,  king  of  England,  come  into  the 

court. 
Crier.     Henry,  King  of  England,  etc. 
K.  Hen.     Here. 
Scribe.     Say,  Katherine,  queen  of  England,  come  into 

court. 
Crier.     Katherine,  queen  of  England,"  etc.5 

The  practice  was  founded  by  the  Normans,  in  England, 
of  having  a  "crier"  to  make  the  various  proclamations  in 
court,  under  the  direction  of  the  judges  or  scribes,  and 
the  duty  of  this  officer,  as  presented  in  this  verse,  was  to 

1  Year-Book,  13  Hen.  VIII,  fol.  12. 

2  Ante  idem. 

3  Finlason's  note,  to  IV  Reeve's  Hist.  Eng.  Law,  p.  275. 

4  Mackintosh's  Hist.  Eng.,  vol.  II,  c.  3. 

5  King  Henry  VIII,  Act  II,  Scene  IV. 


HENRY  THE  EIGHTH.  365 

call  the  parties  litigant,  when  a  case  was  on  for  trial,  in 
order  that  the  parties  to  the  cause  would  be  given  due 
notice  of  the  trial  and  appear  in  person  in  court.1  The 
form  of  the  old  judgments,  by  default,  was  that  the  "de- 
fendant, being  called,  comes  not,  but  makes  default,"  etc., 
and  this  was  an  essential  part  of  the  decree. 

So  the  Poet  in  the  preliminaries  leading  up  to  the  trial 
of  the  divorce  suit  between  Katherine  and  Henry  VIII, 
followed  the  practice  obtaining  then  in  England. 

Sec.  336.    Pleading  cause. — 

"Wol.     You  have  here,  lady, 

(And  of  your  choice,)  these  reverend  fathers;  men 

Of  singular  integrity  and  learning, 

Yea,  the  elect  of  the  land,  who  are  assembled 

To  plead  your  cause."2 

Pleading  is  the  formal  mode  of  alleging  or  setting  up 
the  facts  which  constitute  the  support  or  defence  of  a  party 
litigant,  in  a  trial  in  a  court  of  justice.3  The  object  of 
pleading  is  to  secure  a  clear  and  distinct  statement  before 
the  court  of  the  claims  of  the  different  litigants,  so  that  the 
controverted  points  may  be  exactly  known,  examined  and 
decided,  to  the  end  that  justice  may  be  done. 

The  Cardinal  here,  insists  that  the  rights  of  the  Queen 
are  being  protected  according  to  the  formal  modes  of  the 
procedure  obtaining  at  that  period,  as  she  has  "men  of 
singular  integrity  and  learning,"  .  .  .  "who  are  as- 
sembled to  plead"  her  cause. 


1  Wharton's  Law  Lexicon;   Bouvier's  Law  Dictionary. 

2  King  Henry  VIII,  Act  II,  Scene  IV. 

3  Coke,  48b;  Coke,  Litt.  303;   7  Bacon's  Abr.  457. 

Notwithstanding  all  this  assurance,  the  Queen  knew  that  re- 
gardless of  the  justice  of  her  cause,  or  the  power  of  her  plead- 
ing, the  Judges  would  decide  against  her,  as  they  were  impan- 
elled to  do  the  King's  will,  so  her  course  in  this  trial  was  a 
wise  one,  since  a  worthy  plea  is  not  proof  against  a  prejudiced 
judge. 


366  THE  LAW  IN  SHAKESPEARE. 

Sec.  337.    Session  of  court. — 

"Cam.     His  grace 

Hath  spoken  well,  and  justly:  Therefore,  madam, 
It's  fit  this  royal  session  do  proceed."1 

Session,  is  the  time  for  which  a  court  regularly  sits  for 
the  transaction  of  the  business  which  may  come  before  it. 
Session  is  the  same  as  a  term  of  court,  for  it  includes  the 
day  when  the  court  convenes  and  ends  on  the  day  of  the 
adjournment  of  court.2 

In  refusing  the  application  for  a  continuance,  by  the 
Queen,  the  Cardinals  desired  to  subserve  the  will  of  the 
King  and  rush  the  determination  of  the  cause  to  a  con- 
clusion at  that  session  of  the  court. 

Sec.  338.    Challenging  prejudiced  judge. — 

"Q.  Kath.     .     .     .     I  do  believe, 

Induc'd  by  potent  circumstances,  that 

In  asking  the  right  of  an  attorney  for  Queen  Katherine,  in 
her  divorce  suit,  Cardinal  Wolsey,  addresses  the  King:  "Wol. 
I  know  your  majesty  has  always  lov'd  her,  So  dear  in  heart,  not 
to  deny  her  that  A  woman  of  less  place  might  ask  by  law, 
Scholars,  allow'd  freely  to  argue  for  her."     (Act  II,  Scene  II.) 

1  King  Henry  VIII,  Act  II,  Scene  IV. 
2Bouvier's  Law  Dictionary. 

In  Othello,  the  Moor  of  Venice   (Act  I,  Scene  II),  the  follow- 
ing occurs: 
"Oth.    Where  will  you  that  I  go, 

To  answer  this  your  charge? 
Bra.    To  prison:   till  fit  time 

Of  law,  and  course  of  direct  session, 

Call  thee  to  answer." 
From  these  lines  Shakespeare  places  the  arrest  of  Othello  at 
a  time  when  the  court  was  not  in  session,  but  during  the  vacation 
of  court  and  Brabantio  tells  him  he  must  go  to  prison  to  await 
the  next  session  of  court.  A  session  of  court  is  when  the  court 
convenes  for  the  trial  of  cases.  The  court  consists  of  the  judge, 
sheriff,  clerk,  jury  and  other  court  officers  and  the  meetings  of 
the  court  are  called  the  sessions. 


*  HENRY  THE  EIGHTH.  367 

You  are  mine  enemy ;  and  make  my  challenge, 

You  shall  not  be  my  judge:  for  it  is  you 

Have  blown  this  coal  betwixt  my  lord  and  me,— 

Which  God's  dew  quench :  Therefore,  I  say  again, 

I  utterly  abhor,  yea,  from  my  soul, 

Refuse  you  for  my  judge."1 

Since  impartiality  is  the  first  duty  of  a  judge,  if  he  has 
even  the  slightest  interest  or  bias  in  a  cause  to  be  tried 
before  him,  he  ought  to  disqualify  himself  from  sitting  as 
a  judge,  even  without  objection  of  a  party  interested,  for 
the  maxim  is,  aliquis  non  debet  esse  judex  in  propria 
causa.2  If  the  Cardinal  had  had  due  regard  to  the  pro- 
prieties of  the  situation,  therefore,  when  the  Queen  pub- 
licly charged  his  prejudice  and  unfairness  toward  her,  he 
would  have  refused  to  sit  in  judgment  on  her  cause,  re- 
gardless of  the  strict  legal  right  of  the  Queen  to  challenge 
him  because  of  such  prejudice.  But  the  practice  obtain-, 
ing  at  that  period  did  not  provide  for  such  challenge  on 
account  of  bias  of  the  judge,  although  it  did  because  of 
such  bias  by  a  juror,  and  she  was  perhaps  not  within  the 
strict  letter  of  the  law,  in  urging  this  objection  to  the 
trial  by  Cardinal  Wolsey. 


1  King  Henry  VIII,  Act  II,  Scene  IV. 

2  8   Coke,  118. 

Urging  her  objection  to  Cardinal  Wolsey,  because  of  the  influ- 
ence the  king  had  over  him,  as  her  judge,  Queen  Katherine  again 
said:  "Again,  I  do  refuse  you  for  my  judge;  and  here,  before 
you  all,  appeal  unto  the  pope,  to  bring  my  whole  cause  'fore  his 
holiness,  and  to  be  judg'd  by  him."     (Act  II,  Scene  IV.) 

The  Queen  had  no  legal  right  to  challenge  the  judge  to  try  her, 
for  the  exceptions  or  challenges  which  go  to  the  jurors,  on  their 
preliminary  examinations,  are  not  extended  to  the  Judge,  but 
the  right  claimed  by  the  Queen,  because  of  the  bias  and  prejudice 
of  the  Judge  against  her,  is  equivalent  to  that  now  recognized 
by  law,  under  what  is  known  as  the  change  of  venue  statutes, 
where  a  party  can  complain  of  the  bias  and  prejudice  of  the 
Judge  and  secure  an  impartial  tribunal  to  try  the  cause.  (Coke, 
I'    Inst.,    294.) 


368  THE  LAW  IN  SHAKESPEARE. 

Queen  Katherine  denied  the  authority  of  the  Cardinal  to  try 
the  divorce  case  between  herself  and  the  King,  as  the  marriage 
contract  was  both  a  civil  contract  and  a  spiritual  rite,  as  viewed 
by  the  Church  and  she  did  not,  according  to  the  Catholic  faith, 
recognize  the  right  of  a  temporal  Court,  to  sever  the  holy  bonds. 
That  this  contention  was  strongly  urged  in  the  courts  and 
many  cases  justified  the  contention,  see  6  Bacon's  Abr.,  pp. 
454,   500. 

The  legislation  during  the  reign  of  Henry  VIII,  showed  a  con- 
tinuous strife  and  agitation  against  the  power  of  the  Church 
of  Rome,  principally  as  a  means  of  enabling  the  King  to  avoid 
his  different  marriages.  To  cut  off  Catherine's  appeal  to  Rome, 
the  statute  24  Henry  VIII,  c.  12,  was  passed  rehabilitating  the 
statutes  of  Edward  I  and  III  and  Richard  II  and  Henry  IV, 
against  foreign  jurisdiction,  providing,  among  other  things,  that 
in  all  matrimonial  causes,  the  same  should  be  heard  and  finally 
determined  within  the  King's  jurisdiction  and  authority  and  not 
elsewhere,  regardless  of  any  appeals,  or  process  from  the  see  of 
Rome  (IV  Reeve's  Hist.  Eng.  Law,  pp.  314,  315).  Prior  to  this 
statute,  to  show  the  legality  of  the  Queen's  appeal,  in  her  divorce 
suit,  to  the  Pope  of  Rome,  it  had  been  decided  only  a  few  years 
before,  in  this  same  reign,  that  as  matrimony  was  a  spiritual 
rite,  where  a  papal  bull  of  dispensation  in  a  marriage  had  been 
pleaded,  this  would  be  given  effect,  and  would  make  an  other- 
wise void  marriage  legal,  (Year-Book,  12  Henry  VIII,  fol.  6)  and 
this  being  true,  it  would  naturally  follow  that  the  same  effect 
would  be  given  on  appeal  from  the  civil  courts,  a  conclusion  like- 
wise formerly  recognized  by  a  decision  preceding  the  trial  of 
the  Queen's  divorce  suit.  (Sandes'  case,  Year-Book,  Hen.  III.) 
True,  it  had  been  held  that  no  appeal  would  lie  to  Rome  as  to 
causes  which  could  be  effectually  determined  in  England,  (Year- 
Book,  Edw.  V)  but  of  course  this  could  not  apply  to  a  cause  such 
as  a  marriage  contract,  for  this  is  purely  a  spiritual  rite  and 
one  over  which  the  Church  alone  had  jurisdiction  (Year-Book, 
20  Hen.  VI,  25.) 

After  the  King's  marriage  to  Anne  Boleyn,  and  the  act  of 
succession,  (25  Hen.  VIII,  c.  22)  it  was  thought  prudent  by  all 
means  to  stigmatize  the  marriage  with  Catherine  as  illegal,  so 
a  clause  was  inserted  in  the  statute  making  all  marriages  illegal 
within  the  Levitical  degree  and  of  course  this  included  a  mar- 
riage to  the  widow  of  a  brother.  But  after  tiring  of  the  Mothei 
of  Elizabeth,  the  King  then  had  passed  a  statute,  (32  Hen.  VIII, 
c.  38)  making  all  marriages  solemnized  by  the  Church,  and  fol 
lowed  by  copulation  and  birth  of  children  legal,  and  he  soon 


HENRY  THE  EIGHTH.  369 

Sec.  339.    Retainers. — 

"Q.  Kath.     .     .     .     You  have,  by  fortune,  and  his  high- 
ness' favours, 
Gone  slightly  o'er  low  steps;  and  now  are  mounted 
Where  powers  are  your  retainers:  and  your  words, 
Domestics  to  you,  serve  your  will,  as't  please 
Yourself  pronounce  their  office."1 

The  Queen,  in  this  verse  spoke  in  the  legal  terms  of 
lawyers.  A  retainer  is  a  fee  given  to  a  lawyer  to  insure  his 
future  services  either  in  the  prosecution  or  defense  of  a 
lawsuit,-  or  the  performance  of  some  other  legal  service.2 
The  Cardinal,  according  to  the  expressions  of  the  Queen, 
had  reached  such  height  that  he  did  not  bother  with  small 
affairs,  but' received  retainers  from  the  powers  of  the  earth 
alone. 

Sec.  340.    Appearance  in  Court. — 

"Q.  Kath.     ...     I  will  not  tarry;  no,  nor  ever  more, 
Upon  this  business,  my  appearance  make 
In  any  of  their  courts."3 

Appearance,  in  legal  practice,  is  the  coming  into  court, 
of  a  party  to  a  cause,  whether  as  plaintiff  or  defendant.4 
No  formality  is  required  on  the  part  of  the  plaintiff  in 
entering  his  appearance  for  the  filing  of  the  suit  does  this ; 
but  on  the  part  of  the  defendant,  more  particularity  is 
required.  Appearance  may  either  be  entered  by  person- 
ally appearing  to  the  action,  or  by  entering  the  appear- 
ance in  a  formal  way,  by  entries  of  record  in  the  court. 
When  one  desires  to  plead  to  the  jurisdiction  of  the  court, 

afterward  espoused  Catherine  Howard.  This  latter  statute  was 
to  abolish  the  effect  of  the  canonical  decree,  as  this  marriage  was 
forbidden  by  the  canon  law,  although  not  by  the  Levitical  de- 
gree.    (IV  Reeve's  Hist.  Eng.  Law,  pp.  314-317;    330-335.) 

1  King  Henry  VIII,  Act  II,  Scene  IV. 
8  3  Chitty,  Practice,  116. 
3  King  Henry  VIII,  Act  II,  Scene  IV. 
4Bouvier's  Lav/  Dictionary. 


370  THE  LAW  IN  SHAKESPEARE. 

as  Katherine  did,  in  this  instance,  appearance  by  an  attor- 
ney is  improper,  for  the  appointment  of  the  attorney,  as 
an  officer  of  the  court,  would  admit  the  jurisdiction.1  A 
married  woman,  when  sued  without  her  husband,  at  com- 
mon law,  had  the  right  to  personally  appear,2  so  Katherine 
had  evidently  had  good  legal  advice,  in  pursuing  the 
course  she  did  in  refusing  to  enter  her  appearance  in  the 
court  presided  over  by  Cardinal  Wolsey. 

Sec.  341.    Under  hand  and  seal  — 

"K.  Ren Unsolicited 

I  left  no  reverend  person  in  this  court ; 
But  by  particular  consent  proceeded, 
Under  your  hands  and  seals."3 

"Under  hand  and  seal,"  are  formal  words,  in  the  law, 
indicating  the  formal  execution  of  a  document,  required 
to  be  sealed,  to  give  it  validity.  It  is  the  customary  man- 
ner of  closing  a  written  document,  to  be  executed  by  two 
or  more,  the  formal  words  being,  "Witness  our  hands  and 
seals,"  or  "Under  our  hands  and  seals,"  as  adopted  by  the 
King  here.  The  King  is  addressing  himself  to  the  law 
members  of  his  court,  assuring  them  that  he  had  acted 
in  a  disinterested  manner,  having  the  writs  issued  in  a 
legal,  formal  manner,  by  leaving  no  "reverend  person" 


1  5  Watts  &  S.,  215. 
al  Chitty,  PI.  398. 

The  Poet  treats  the  entry  of  an  appearance  in  the  legal  way 
and  after  Katherine  had  questioned  the  jurisdiction  of  the  Court, 
she  left,  so  that  she  would  not  be  held  to  have  waived  the  ques- 
tion of  the  court's  jurisdiction  over  her  person.  As  an  appear- 
ance is  treated  as  a  voluntary  entry  of  one's  person  into  court 
and  dispenses  with  the  necessity  of  process,  the  good  Queen 
thus  claimed  her  rights  in  a  strictly  legal  manner  and  did  not 
pursue  a  course  that  would  estop  her  from  afterward  treating 
the  proceeding  as  a  nullity  or  questioning  the  jurisdiction  of  the 
court,  over  her  person.     (Bouvier's  Law  Dictionary.) 

3  King  Henry  VIII,  Act  II,  Scene  IV. 


HENRY  THE  EIGHTH.  371 

in  the  court,  but  proceeding  "under  .  .  .  hands  and 
seals."  If  certain  judicial  writs  were  presented  without 
the  prerogative  seal,  they  were  void;  the  officer  sealing 
such  writs  was  called  the  "sealer  of  writs/'  and  the  undue 
prominence  given  by  the  Poet  to  the  seals  attached  to 
these  writs,  shows  his  familiarity  with  the  requirements 
of  the  practice  obtaining  in  such  cases.1 

Sec.  342.    Motion  to  dismiss  appeal. — 

"Cam.     .     .     .     Meanwhile  must  be  an  earnest  motion 
Made  to  the  queen,  to  call  back  her  appeal, 
She  intends  unto  his  holiness."2 

A  "motion,"  in  legal  practice,  is  the  application  of  one 
of  the  parties  to  a  cause,  or  his  counsel's  application,  for 
him,  for  some  rule  or  order  which  he  thinks  is  necessary, 
in  the  ordinary  progress  of  the  cause,  to  get  relieved  from 
some  matter  which  would  work  injustice,  if  the  motion 
were  refused.3  The  Cardinal  observes  that  the  Queen's 
appeal  will  delay  the  termination  of  the  King's  suit  for 
divorce  and  recommends  that  "earnest  motion"  shall  be 
made  to  persuade  her  to  dismiss  her  appeal  to  the  Pope. 

Sec.  343.    Dilatory  pleas. — 

"K.  Hen.     I  may  percieve, 

These  cardinals  trifle  with  me:  I  abhor 
This  dilatory  sloth  and  tricks  of  Rome."4 

Dilatory  pleas  are  those  which  have  for  their  object  the 
dismissal,  suspension,  or  obstruction  of  a  suit,  without 
touching  the  merits  of  the  controversy,  until  the  impedi- 
ment or  obstacle  insisted  upon  shall  be  removed.5  The 
Queen's  course  in  this  divorce  suit,  came  within  the  class 


1  3  Coke,  Inst.,  169. 

2  King  Henry  VIII,  Act  II,  Scene  IV. 

3  3  Bl.  Comm.  305. 

4  King  Henry  VIII,  Act  II,  Scene  IV. 
6Bouvier's  Law  Dictionary. 


372  THE  LAW  IN  SHAKESPEARE. 

of  pleas  known  as  dilatory  pleas,  in  that  she  did  not  want 
to  submit  herself  to  the  jurisdiction  of  the  court,  or  meet 
the  cause  on  its  merits,  but  endeavored  to  obstruct  the  pro- 
ceeding by  other  than  a  trial  on  the  merits. 

The  King  here  objects  to  the  tactics  followed  by  the 
Queen  and  the  Cardinals  in  granting  her  additional  time, 
in  the  cause.  First,  she  asked  for  a  continuance  of  the 
cause,  to  enable  her  to  confer  with  her  friends  in  Rome, 
and  this  being  denied  her,  she  objected  to  the  proceeding, 
before  Cardinal  Wolsey,  because  of  his  bias  and  prejudice 
against  her;  this  being  denied  her,  she  questioned  the 
jurisdiction  of  the  court;  refused  to  enter  her  appearance 
and  left  the  court.  The  Cardinals  then  decided  that  they 
had  no  jurisdiction,  unless  they  could  persuade  her  to 
withdraw  or  dismiss  her  appeal  to  Rome  and  of  this  prac- 
tice, the  King  complained,  and  called  it  "dilatory  sloth." 


Sec.  344.    Adjournment  of  court. — 

Cam.     So  please  your  highness, 

The  queen  being  absent,  'tis  a  needful  fitness 
That  we  adjourn  this  court  till  further  day."1 


<< 


Adjournment  of  court  is  to  put  off  or  re-set  another  day 
for  the  trial  of  a  cause,  or  the  transaction  of  the  business 
of  the  court.2  Adjournments  are  either  sine  die,  or  to 
court  in  course,  or  temporary  or  until  some  other  day, 
before  the  regular  term  of  court,  in  course.  The  adjourn- 
ment mentioned  by  the  Cardinal  here,  is  the  latter  kind 
and  was  made  necessary  by  the  action  of  the  Queen,  in 
refusing  to  enter  her  appearance  and  to  submit  to  the 
jurisdiction  of  the  court  over  her  person. 

1  King  Henry  VIII,  Act  II,  Scene  IV. 

2  2   Sh.   Bl.   Comm.   186. 

Menenius  tells  Brutus,  in  Coriolanus:  "Men.  .  .  .  you  wear 
out  a  good  wholesome  forenoon,  in  hearing  a  cause  between  an 
orange-wife  and  a  fosset-seller;  and  then  rejourn  the  controversy 
of  three-pence  to  a  second  day  of  audience."     (Act  II,  Scene  I.) 


HENRY  THE  EIGHTH.  373 

Sec.  345.    Trial  at  law. — 

"Cam.     .     .     ,     if  the  trial  of  the  law  o'ertake  you, 
You'll  part  away  disgrac'd."1 

A  trial  at  law,  is  the  examination,  before  a  competent 
tribunal,  according  to  the  laws  of  the  land,  of  the  facts  put 
in  issue  in  a  cause,  for  the  purpose  of  determining  such 
issue.2  The  object  of  the  threat  of  the  Cardinal  was  to 
deter  the  Queen  from  her  course  in  insisting  upon  her 
appeal  to  Rome,  or  a  trial  according  to  the  forms  of  law, 
and  the  inducement  is  held  out  that  the  King,  because  of 
his  previous  regard  for  her,  will  deal  more  gently  with 
her  than  a  court,  influenced  by  him  would  do,  and  that 
she  had  better  avoid  a  trial  at  law,  because  of  the  result- 
ing disgrace  that  would  accrue  to  her,  from  this  proceed- 
ing. Of  course  this  was  a  subterfuge,  to  assist  the  King 
in  his  unholy  inclinations. 

Sec.  346.    Inventory. — 

"K.  Hen.     Forsooth,  an  inventory,  thus  importing, — 
The  several  parcels  of  his  plate,  his  treasure, 
Rich  stuffs  and  ornaments  of  household;  which 
I  find  at  such  proud  rate,  that  it  out-speaks 
Possession  of  a  subject."3 

An  inventory  is  a  list,  schedule,  or  enumeration,  in 
writing,  containing,  article  by  article,  the  goods  and  chat- 
tels, rights  and  credits,  together  with  the  lands  and  tene- 
ments of  a  person  or  persons.4 


1  King  Henry  VIII,  Act  III,  Scene  I. 

2  3  Bl.  Comm.  333. 

3  King  Henry  VIII,  Act  III,  Scene  II. 

4  2  Bl.  Comm.  514;   4  Bacon's  Abr.,  86. 

Surrendering  his  earthly  effects  to  the  king,  after  the  issuance 
of  the  writ  of  praemunire  against  him,  Cardinal  Wolsey  said,  in 
King  Henry  VIII: 
"Wol.    And, — pr'ythee,  lead  me  in: 

There  take  an  inventory  of  all  I  have, 

To  the  last  penny;  'tis  the  kings."        (Act  III,  Scene  II.) 


374  THE  LAW  IN  SHAKESPEARE. 

The  King  here  enumerates  the  articles  composing  the 
inventory,  or  the  general  classes  of  the  assets  of  the  Car- 
dinal, such  as  his  plate,  treasures,  etc.,  which  would  nat- 
urally be  the  form  of  the  legal  inventory,  if  the  same 
were  prepared  by  a  lawyer.  The  list  totaling  so  much  as 
to  show  the  dangerous  nature  of  the  Cardinal's  acquisitions 
the  King  concludes  to  confiscate  his  property,  under  the 
writ  of  praemunire,  known  to  the  law  at  that  time. 

Sec.  347.     Commission  for  office. — 

"Wol.     Stay, 

Where's  your  commission,  lords?  words  cannot  carry 
Authority  so  weighty."1 

A  commission,  in  law,  in  the  sense  used  by  the  Cardinal, 
is  a  written  document,  in  the  nature  of  letters-patent, 
granted  by  the  King  or  Government,  under  the  public 
seal,  to  persons  appointed  to  an  office,  giving  authority 
to  perform  the  duties  of  the  office.2 

The  Cardinal  will  not  take  the  mere  words  of  the 
Lords,  for  their  authority  to  thus  confiscate  his  office  and 
immure  his  person,  but  demands  their  commission,  or 
authority  from  the  king. 

Sec.  348.    Writ  of  Praemunire. — 

"Suff.     Lord  cardinal,  the  king's  further  pleasure  is, 
Because  all  those  things,  you  have  done  of  late 

Taunting  Cardinal  Wolsey  over  the  lost  inventory  of  his  riches, 
at  the  expense  of  the  King,  King  Henry  VIII  said  to  him: 
"K.  Hen.  Good  my  lord,  you  are  full  of  heavenly  stuff,  and  bear 
the  inventory,  of  your  best  graces  in  your  mind."  (Act  III, 
Scene  II.) 

A  citizen,  speaking  of  the  wrongs  suffered  at  the  hands  of 
Caius  Marcius,  in  Coriolanus,  said:  "1  Cit.  .  .  .  the  leanness 
that  afflicts  us,  the  object  of  our  misery,  is  as  an  inventory  to 
particularize  their  abundance."     (Act  I,  Scene  I.) 

1  King  Henry  VIII,  Act  III,  Scene  II. 
3  Rutherforth,  Inst.,  105. 


HENRY  THE  EIGHTH.  375 

By  your  power  legatine  within  this  kingdom, 

Fall  into  the  compass  of  a  praemunire, — 

That  therefore  such  a  writ  be  sued  against  you; 

To  forfeit  all  your  goods,  lands,  tenements, 

Chattels  and  whatsoever,  and  to  be 

Out  of  the  king's  protection: — This  is  my  charge."1 

A  writ  of  praemunire  was  a  writ  addressed  to  a  repre- 
sentative of  the  Pope  to  compel  the  restitution  of  prop- 
erty taken  without,  the  authority  of  the  civil  Government, 
and  to  punish  the  papal  representative  for  his  act  in  main- 
taining the  Pope's  authority,  in  defiance  of  the  rights 
of  the  Civil  Government.2  The  writ  owed  its  existence 
to  certain  statutes  passed  during  the  reign  of  Edward  I 
and  later  reigns  and  was  due  to  the  growing  tendency  upon 
the  part  of  the  Government,  to  restrain,  within  proper 
limits,  the  grasping  hand  of  the  Roman  church,  in  civil 
affairs.  The  writ  provided  for  the  enforcement  of  these 
statutes  used  the  words  praemunire  facias,  to  command  a 
citation  of  the  guilty  person,  hence  this  name  was  applied 
not  only  to  the  writ,  but  to  the  offense  of  maintaining 
the  Papal  power,  in  defiance  of  the  civil  authorities.3 

The  Cardinal  is  charged  with  having,  while  acting  for 
the  Pope,  defied  the  civil  authority  of  the  King,  and 
hence  of  having  fallen  "into  the  compass  of  a  praemu- 
nire," his  goods  and  tenements  are  declared  forfeited  and 
he  is  without  the  protection  of  the  king. 


1  King  Henry  VIII,  Act  III,  Scene  II. 

'Coke,  Litt.  129. 

•Coke,  Litt.  129;   7  Bacon's  Abr.,  690,  694. 

As  presented  by  the  Poet,  the  proper  form  of  judgment  in  a 
praemunire,  at  the  suit  of  the  king  was  against  the  defendant, 
"that  he  be  out  of  the  protection  of  the  king;  that  his  lands  and 
tenements,  goods  and  chattels,  shall  be  forfeited  to  the  king.' 
Coke,  Litt.  129b;  3  Coke,  Inst.,  125,  218;   7  Bacon's  Abr.,  p.  693. 

For  history  of  the  law  upon  the  writ  of  praemunire,  see  III 
Reeve's  Hist.  Eng.  Law,  pp.  122,  123. 


376  THE  LAW  IN  SHAKESPEARE. 

Sec.  349.    Decree  of  divorce  from  Katherine. — 

"1  Gent.     .     .     .     The  archbishop 

Of  Canterbury,  accompanied  with  other 
Learned  and  reverend  fathers  of  his  order, 
Held  a  late  court  at  Dunstable,  six  miles  off 
From  Ampthill,  where  the  princess  lay ;  to  which 
She  oft  was  cited  by  them,  but  appear'd  not : 
And,  to  be  short,  for  not  appearance,  and 
The  king's  late  scruple  by  the  main  assent 
Of  all  these  learned  men  she  was  divorc'd, 
And  the  late  marriage  made  of  none  effect."1 

In  this  verse,  the  Poet  shows  that  the  decree  of  divorce 
from  his  marriage  with  Katherine,  was  by  default,  as  she 
failed  to  enter  her  appearance,  although  "she  oft  was 
cited  by  them,"  and  the  king  was  thereby  adjudged  to 
have  never  contracted  a  lawful  marriage  with  her. 

The  basis  for  this  judgment  was  the  king's  scruple,  or 
his  conscience,  which  was  the  reason  assigned  why  his 
marriage  was  void,  since  it  was  within  the  Levitical  degree, 
and  against  the  mandate  of  the  statute.  (32  Hen.  VIII, 
c.  38.) 

Katherine's  appeal  was  disallowed  by  the  "reverend 
fathers  of  his  order,"  and  by  the  Archbishop  of  Canter- 
bury, since  it  wTas  concluded  by  them  that  the  marriage 
was  within  the  Levitical  degree  and  the  temporal  and  not 
the  spiritual  courts  had  cognizance  of  the  offense,  if  the 
marriage  was  illegal,  which  they  decided  it  to  be. 

The  prohibition  by  the  Levitical  law,  was  carried  to 
uncles  and  nieces,  aunts  and  nephews,  because  upon  the 
death  of  father  and  mother,  they  come  into  the  law  as 
standing  in  loco  parentis,  and  it  was  considered  necessary 
to  propagate  the  same  reverence  of  blood  as  if  the  relatives 
were  of  nearer  relationship.2 

1  King  Henry  VIII,  Act  IV,  Scene  I. 
3  6   Bacon's   Abr.,   p.   458,   et  seq. 

This  late  Court  at  "Dunstable,  six  miles  off,"  to  which  Queen 
Katherine  was  "oft  cited,"  and  which  was  presided  over  by  the 


HENRY  THE  EIGHTH.  377 

Sec.  350.     Simony.— 

"Kath.  ...     He  was  a  man 

Of  an  unbounded  stomach,  ever  ranking 
Himself  with  princes:  one,  that  by  suggestion 
Ty'd  all  the  kingdom :  simony  was  fair  play ; 
His  own  opinion  was  his  law:  I'the  presence 
He  would  say  untruths;  and  be  ever  double, 
Both  in  his  words  and  meaning."1 

Simony,  at  the  common  law,  was  the  buying  or  selling 
of  holy  orders  or  of  ecclesiastical  benefices.  In  other 
words,  it  was  an  unlawful  agreement  to  receive  temporal 
rewards  for  something  holy  or  spiritual.2 

The  offense  of  simony  was  regarded  with  such  severity, 
at  the  common  law,  that  a  general  pardon,  was  held  not 
to  extend  to  one  guilty  of  this  offense;3  but  "neither  the 
consideration  of  the  greatness  of  the  offense  of  simony, 
nor  1  he  provision  made  against  it  by  the  canon  or  common 
law,  was  sufficient  to  put  a  stop  to  this  offense,"  as  ob- 

"learued  men,"  named  by  the  Poet,  as  the  action  referred  to  was 
judicially  reported,  on  the  Queen's  failure  to  appear,  after  service 
of  the  citations,  treated  her  as  in  contempt;  and  decreed  that  her 
"pretended  marriage  always  was  and  still  is  null  and  invalid; 
that  it  was  contracted  and  consummated  contrary  to  the  will  and 
law  of  God;  that  it  is  of  no  force  or  obligation  and  that  it  always 
wanted  and  still  wants,  the  strength  and  sanction  of  law."  (1 
State  Trials,  259,  260.)  This  decision,  of  course,  was  in  sub- 
serviance  to  the  will  of  the  King,  regardless  of  the  legality  of 
the  marriage,  but  if  the  first  premise  had  been  well  taken,  then 
the  conclusion  was  right,  for  a  contract  or  other  act,  which  is 
void, — aside  from  the  marriage  contract,  which  on  grounds  of 
public  policy  will  be  upheld,  after  many  years  to  legitimize  chil- 
dren born  during  the  existence  of  the  relation — is  not  helped  by 
lapse  of  time,  but  the  maxim  is,  "Quod  ab  initio  non  valet  intractu 
temporis  non  convalescet,"  or  as  this  is  usually  translated,  that 
which  was  void,  in  the  beginning,  cannot  be  made  valid  by  lapse 
of  time,  so  the  decree,  as  the  Poet  gives  it,  and  as  it  was,  in 
fact,  had  the  outward  semblance  to  legality. 

1  King  Henry  VIII,  Act  IV,  Scene  II. 
3Bouvier's  Law  Dictionary. 
3  9  Bacon's  Abr.,  23. 


378  THE  LAW  IN  SHAKESPEARE. 

served  by  Matthew  Bacon,  in  his  Abridgment,1  so  it  was 
at  length  prohibited,  under  severe  penalties,  by  the  stat- 
ute 31  Elizabeth,  c.  6,  enacted  during  the  life  of  the  Poet. 


Sec.  351.    Purging  one's  self  of  guilt. — 

"K.  Hen.     .     .     .     I  know, 

You  cannot  with  such  freedom  purge  yourself, 
But  that,  till  further  trial,  in  those  charges, 
Which  will  require  your  answer,  you  must  take 
Your  patience  to  you  and  be  well  contented 
To  make  your  house  our  tower."2 

Purging  one's  self  of  crime,  at  common  law,  was  the 
clearing  of  one's  self  of  an  offense  charged,  by  denying 
the  guilt  on  oath  or  affirmation.3 

Canonical  purgation  was  the  denial  of  the  offense,  be- 
fore at  least  twelve  persons,  who  would  state  that  they 
believed  the  accused,  while  vulgar  purgation,  consisted  of 
superstitious  trials  by  hot  and  cold  water,  by  fire,  by  hot 
irons  and  such  like  barbarities  that  tried  the  temper  and 
nerve  of  the  accused  one.4 

The  purgation  referred  to  by  the  King,  in  this  instance, 
was  rather  that  of  the  canonical  purgation,  until  which, 
he  advises  the  Tower  and  patience. 

Sec.  352.    Verdict  based  on  perjury. — 

"K.  Hen.     .     .     .     not  ever 

The  justice  and  the  truth  o'  the  question  carries 
The  due  o'  the  verdict  with  it:  At  what  ease 

1 9  Bacon's  Abr.,  6. 

For  discussion  of  the  common  law  offense  of  simony  and  his- 
tory of  the  legislation  in  England,  to  prevent  this  offense,  see 
V  Reeve's  History  Eng.  Law,  p.  192. 

2  King  Henry  VIII,  Act  V,  Scene  I. 
8  Bouvier's  Law  Dictionary. 
4  3  Bl.  Comm.  341. 


HENRY  THE  EIGHTH.  379 

Might  corrupt  minds  procure  knaves  as  corrupt 

To  swear  against  you?  such  things  have  been  done."1 

The  King  here  warns  his  friend  against  the  danger  of  a 
perjured  witness  or  two  being  used  against  him,  at  his 
trial.  Of  course,  if  evidence  which  is  not  true  should  be 
offered  on  the  trial  of  any  issue,  then  "the  justice  and 
the  truth  o'  the  question,"  would  not  carry  "the  due  o'  the 
verdict  with  it,"  but  wrong  would  triumph,  instead  of 
right  and  falsehood,  instead  of  truth,  prevail.  The  preva- 
lency  of  the  crime  of  perjury,  about  the  time  at  which  the 
trial  was  to  be  had,  is  a  sufficient  excuse  for  the  King's 
admonition,  as  to  the  ease  with  which  "corrupt  minds  pro- 
cure knaves  as  corrupt  to  swear  against  you,"  for  the 
severity  of  the  offense,  according  to  the  statutes,2  and  the 
punishment  either  of  imprisonment,  or  by  the  pillory, 
did  not  seem  to  abate  the  crime,  until  the  enactment  of 
the  29  Elizabeth,  c.  5,  by  which  the  severity  of  the  punish- 
ment ~:as  increased.3 

Sec.  353.    Accusing  one,  face  to  face. — 

"Cran.     ...     I  do  beseech  your  lordships, 
That,  in  this  case  of  justice,  my  accusers, 
Be  what  they  will,  may  stand  forth  face  to  face, 
And  freely  urge  against  me."4 

The  accused  here,  but  asked  what  the  law  accorded  him, 
had  his  trial  been  in  a  temporal  court,  for  Magna  Charta 
provided  that  "no  freeman  shall  be  taken  or  impris- 
oned,    .     .     .     except  by  legal  judgment  of  his  peers, 


1King  Henry  VIII,  Act  V,  Scene  I. 

2  7  Bacon's  Abr.,  424-438. 

3  Coke,  3'  Inst.,  163-168;    4  Bl.  Comm.  137-139. 

King  Henry  VIII  tells  Cranmer,  in  warning  him  against  his 
approaching  trial:  "K.  Hen.  .  .  .  Ween  you  of  better  luck, 
I  mean  of  perjur'd  witness,  than  your  master,  Whose  minister 
you  are,  whiles  here  he  liv'd  Upon  this  naughty  earth."  (Act  V, 
Scene  I.) 

4  King  Henry  VIII,  Act  V,  Scene  II. 


380  THE  LAW  IN  SHAKESPEARE. 

or  the  law  of  the  land."1  By  the  organic  provisions  of 
the  United  States  Constitution,  each  person  accused  of 
crime  is  entitled  to  have  the  witnesses  brought  "face  to 
face"  before  him,2  as  Cranmer  prayed,  in  this  instance, 
and  in  denying  him  this  right,  he  was  clearly  denied  one 
of  the  rights  of  an  accused  citizen,  as  recognized  by  Eng- 
lish law. 

Sec.  354.    Accusing  Counsellor. — 

"Suf.     Nay,  my  lord, 

That  cannot  be:  you  are  a  counsellor, 

And,  by  that  virtue,  no  man  dare  accuse  you."8 

The  excuse  for  denying  Cranmer  the  benefit  of  having 
the  accusers  against  him,  appear  "face  to  face,"  is  made 
that  since  he  is  a  King's  Counsellor,  no  man  dare  accuse 
him.  The  King's  counsel  were  those  barristers  who  were 
selected  by  him  to  be  of  counsel  for  the  realm  and  because 
of  their  nearness  to  the  king's  person,  the  plea  is  urged 
that  no  one  dare  make  accusations  against  one  so  em- 
ployed, without  privilege  so  to  do  from  the  king. 

Sec.  355.    Acting  as  both  judge  and  juror. — 

"Cran.     ...     if  your  will  pass, 

I  shall  both  find  your  lordship  judge  and  juror."4 

Cranmer  objects  to  the  trial  being  had  by  one  occupy- 
ing the  position  of  both  judge  and  juror,  for  while  it  was 
the  province  of  the  jury  to  determine  only  issues  of  fact, 
and  of  the  judge  to  pass  upon  issues  of  law,  if  both  func- 

*4  Bl.  Comm.  423;  2  Coke,  Inst,  39. 

2  The  accused,  by  Constitution  of  the  U.  S.  is  entitled  to  be 
confronted  with  the  witnesses  against  him.    U.  S.  Con.  Art.  VI. 
8  King  Henry  VIII,  Act  V,  Scene  II. 

In  Othello,  after  Iago's  coarse  speech,  Desdemona  asks  Cassio: 
"How  say  you,  Cassio:  is  he  not  a  most  profane  and  liberal 
counsellor?"     (Act  II,  Scene  I.) 

4  King  Henry  VIII,  Act  V,  Scene  II. 


HENRY  THE  EIGHTH.  381 

tions  are  to  be  discharged  by  one  acting  in  both  capacities, 
he  intimates  that  because  of  the  prejudice  of  the  Lord,  he 
would  lose  his  rights. 

Sec.  356.    Crime  of  heresy. — 

"Gar.     My  lord,  my  lord,  you  are  a  sectary, 

That's  the  plain  truth :  your  painted  gloss  discovers, 
To  men  that  understand  you,  words  and  weakness."1 

A  sectary,  or  sectarian,  in  religion,  is  one  who  separates 
himself  from  an  established  church,  and  adheres  to  some 
sect,  or  following,  at  variance  with  the  established  religion. 
The  offense,  at  common  law,  was  known  as  heresy,  which 
consisted  not  in  the  total  denial  of  Christianity,  but  of 
some  of  its  essential  doctrines,  publicly  and  obstinately 
avowed.2 

Sec.  357.     £~nea!  by  king's  ring. — 

"Cran.     ...     I  have  a  little  yet  to  say.     Look  there, 
my  lords; 
By  virtue  of  that  ring,  I  take  my  cause  _ 
Out  of  the  gripes  of  cruel  men,  and  give  it 
To  a  most  noble  judge,  the  king,  my  master. 

Cham.     This  is  the  king's  ring. 

Sur.     'Tis  no  counterfeit.3 

This  refers  to  the  custom  of  regarding  the  holder  or 
possessor  of  the  king's  private  ring,  as  entitled  to  the  pre- 

1  King  Henry  VIII,  Act  V,  Scene  II. 

2  Blackstone's   Comm. 

The  accusation  against  Cranmer,  reminds  us  of  what  Milton 
said:  "I  never  knew  that  time  in  England,  when  men  of  truest 
religion  were  not  counted  sectaries." 

3  King  Henry  VIII.  Act  V,  Scene  II. 

The  King  tells  Cranmer,  in  King  Henry  VIII:  "K.  Hen.  .  .  . 
if  entreaties  will  render  you  no  remedy,  this  ring  deliver  them 
and  your  appeal  to  us  there  make  before  them."  (Act  V, 
Scene  I.) 


382  THE  LAW  IN  SHAKESPEARE. 

rogatives  of  the  king's  person  and  to  be  exempt  from  the 
punishment  he  would  otherwise  be  accorded,  were  he  not 
invested  with  this  insignia  of  royalty.  The  custom  ob- 
tained at  this  time,  of  offering  the  ring  of  the  king,  which 
was  construed  as  a  claim  of  the  royal  prerogative,  by  the 
king,  of  himself  passing  judgment  upon  the  accused  per- 
son and  of  denying  to  the  court  the  right  to  proceed  with 
a  cause.  Hence,  Cranmer  says  he  takes  his  cause  out  of 
their  jurisdiction,  by  the  ring. 

We  find,  in  the  book  of  Esther,  that  "This  was  the  cus- 
tom, that  no  man  durst  gainsay  the  letters  which  were  sent 
in  the  King's  name,  and  were  sealed  with  his  ring." 
(Esther,  ch.  VIII,  8.)  See,  also,  "The  Castle  of  Otranto,,, 
p.  100. 


CHAPTER  XXVI. 

"TROILUS  AND  CRESSIDA." 

Sec.  358.  Ravishment. 

359.  Per  se. 

360.  Justice  residing  between  right  and  wrong. 

361.  Impressment  for  military  service. 

362.  Attestation. 

363.  Damage  and  indemnity  of  war. 

364.  Law's  protection  of  marital  relation. 

365.  A  "privileged  man." 

366.  Underwriting  one. 

367.  A  kiss  in  fee  farm. 

368.  Execution  of  contract  by  parties  "interchangeably." 

369.  Right  warring  with  right. 

370.  Consanguinity. 

371.  Rejoindures. 

372.  Attestation  by  "sight  and  hearing." 

Sec.  358.    Ravishment. — 

"Pro The  ravish'd  Helen,  Men  elans'  queen. 

With  wanton  Paris  sleeps;  And  that's  the  quarrel."1 

"Ravished,"  in  criminal  pleading,  is  a  technical  word 
essential,  in  an  indictment  for  rape.2 

No  other  word  will  generally  answer  and  the  defendant 
is  usually  charged  with  having  "feloniously  ravished," 
the  prosecutrix,  or  woman  mentioned  in  the  indictment.3 

The  prologue  here  recognizes  the  condonement  of  the 
ravishment,  by  Helen,  for  it  is  mentioned  that  she  "with 
wanton  Paris  sleeps,"  but  the  fact  of  the  original  rape  or 
ravishment,  is  mentioned  as  the  cause  of  the  quarrel. 


^roilus   and   Cressida,   Act   I,   Scene   I. 
2  5  Bacon's  Abr.,  p.  48,  et  seq. 

'The  word  implies  that  the  act  was  forcible  and  against  the 
will.    3  Chitty's  Cr.  Law,  812. 

(383) 


384  THE  LAW  IN  SHAKESPEARE. 

Sec.  359.    Per  se.— 

"Alex.     They  say  he  is  a  very  man,  per  se, 
And  stands  alone."1 

"Per  se,"  when  used  in  the  law,  means  by  itself,  or  him- 
self. A  man's  act  is  held  to  be  negligence,  per  se,  or 
when  one  appears  as  Counsel  in  his  own  cause,  he  is  said 
to  appear,  per  se,  or  by  himself. 

The  Poet  here  makes  Alexander  refer  to  Troilus  as  a 
man,  per  se,  meaning  that  he  is  a  man,  by  himself,  or  in 
himself.  The  expression  is  one  familiar  to  lawyers  and 
courts  and  is  used  in  this  generic  way,  by  law  writers 
and  courts.2 

Sec.  360.    Justice  residing  between  right  and  wrong.— 

"Ulyss.     .     .     .     Take   but   degree   away,   untune   that 
string, 
And,  hark,  what  discord  follows:  each   thing  meets 
In  mere  oppugnancy :  The  bounded  waters 
Should  lift  their  bosoms  higher  than  the  shores, 
And  make  a  sop  of  all  this  solid  globe : 
Strength  should  be  lord  of  imbecility, 
And  the  rude  son  should  strike  his  father  dead : 
Force  should  be  right :  or,  rather  right  and  wrong 
(Between  whose  endless  jar  justice  resides,) 
Should  loose  their  names,  and  so  should  justice  too"3 

The  language  of  Ulysses  is  that  between  contending  fac- 
tions or  by  way  of  compromise  justice  is  more  nearly  ap- 
proached. In  other  words,  in  the  practical  administra- 
tion of  justice,  it  is  found  that  the  one  who  claims  to 
be  right  is  not  always  so,  to  the  extent  claimed,  and  the 
one  who  is  claimed  to  have  violated  this  right,  or  to  have 
perpetrated  the  wrong,  is  not  always  as  wrong  as  it  is 
claimed,  but  between  the  two  the  right,  or  the  real  jus- 
tice of  the  contention,  resides. 


troilus  and  Cressida,  Act  I,  Scene  II. 

2  3  Bl.  Comm.  181. 

3  Troilus  and  Cressida,  Act  I,  Scene  III. 


TROILUS  AND  CRESSIDA.  385 

This  reasoning  urges  respect  for  the  law,  through  which 
justice  is  enforced,  and  intimates  that  without  such  re- 
spect, might  or  force  alone  can  gain  control.  In  the  prac- 
tical administration  of  justice,  the  expressions  are  most 
correct,  for  in  the  permission  of  the  law  that  each  one 
shall  enjoy  his  own,  it  is  found  not  always  to  be  in  the 
proportion  that  it  is  urged  such  right  should  be  enjoyed, 
but  rather  that  "justice  resides,"  between  the  "endless 
jar"  of  right  and  wrong.1 

Sec.  361.    Impressment  for  military  service. — 

"Achil.  Your  last  service  was  sufferance,  'twas  not  volun- 
tary ;  no  man  is  beaten  voluntary ;  Ajax  was  here  the 
voluntary,  and  you  as  under  an  impress."2 

The  ships  of  the  British  Navy  were  formerly  manned  by 
impressment,  and  the  practice  had  not  only  the  sanction 
of  custom,  but  the  force  of  law  and  many  acts  of  parlia- 
ment were  passed,  from  the  reigns  of  Philip  and  Mary 
to  that  of  George  III,  to  regulate  the  system  of  impress- 
ment, in  England.3  The  practice  was  to  seize,  by  force, 
such  seamen,  rivermen  and  other  citizens  as  the  circum- 
stances demanded  for  service  in  the  navy.     An  armed 


^oke,  2'  Inst.,  56;  Toullier,  Droit,  Civ.  Pr.  tit.  prel.  n.  5. 

2  Troilus  and  Cressida,  Act  II,  Scene  I. 

3V  Reeve's  History  English  Law,  140,  et  sub;  Bacon,  Abr. 

In  Antony  and  Cleopatra,  Enobarbus  tells  Cleopatra,  compar- 
ing her  sailors  with  those  of  Caesar:     "Your  ships  are  not  well 
manned;  Your  mariners  are  muleteers,  reapers,  people  ingross'd 
by  swift  impress."     (Act  III,   Scene  VII.) 
And  in  Hamlet,  Marcellus  asks  Horatio: 
"Mar.    Good  now,  sit  down,  and  tell  me,  he  that  knows, 
Why   this   same   strict   and   most   observant   watch 
So  nightly  toils  the  subject  of  the   land; 
And   why   such   daily   cast   of   brazen   cannon, 
And  foreign  mart  for  implements  of  war; 
Why  such  impress  of  shipwrights,  whose  sore  task 
Does  not  divide  the  Sunday  from  the  week." 

(Act  I,   Scene   I.) 


386  THE  LAW  IN  SHAKESPEARE. 

body  of  sailors,  preceded  by  officers  of  the  law  usually 
went  to  the  seaport  towns  and  laid  violent  hands  on  all 
eligible  men  and  conveyed  them,  by  force  to  the  ships 
of  war.  Under  the  law  all  men  of  seafaring  habits  be- 
tween 18  and  55  years  were  liable  to  be  seized,  subject  to 
certain  exemptions  and  what  was  known  as  the  "Press- 
gang' ?  were  authorized  to  board  any  merchant-vessel,  in 
any  port  in  the  world  and  seize  British  subjects,  a  right 
frequently  abused  in  different  parts  of  the  world,  by  Eng- 
lish seamen. 

Of  course  those  men  seized  and  forced  to  serve  were 
not  usually  as  good  seamen  as  the  volunteers,  who  went 
into  the  service  willingly,  and  this  is  what  Achilles  means, 
in  the  lines  above  quoted. 

Sec.  362.    Attestation. — 

"Paris.     .     .     .     Bui  I  attest  the  gods,  your  full  consent 

In  King  Richard  II,  the  King,  referring  to  the  impressment 
of  Bolingbroke,  said: 

".     .     .    For  every  man  that  Bolingbroke  hath  press'd 
To  lift  shrewd  steel  against  our  golden  crown, 
God  for  his  Richard  hath  in  heavenly  pay 
A  glorious  angel."  (Act  III,  Scene  II.) 

In  King  Lear,  Lear  is  made  to  say,  to  Edgar:  "Nature's  above 
art  in  that  respect. — There's  your  press-money."  (Act  IV, 
Scene  VI.) 

And  in  same  play,  (Act  V,  Scene  III)  Edmund  speaks  of 
turning  "our  impress'd  lances  in  our  eyes." 

Of  the  wonderful  power  of  love,  the  maid  discourses,  in  A 
Lover's   Complaint: 

"O  most  potential  love:   vow,  bond,  nor  space, 
In  thee  hath  neither  sting,   knot,   nor  confine, 
For  thou  art  all,  and  all  things  else  are  thine. 
When  thou   impressest,   what  are   precepts  worth 
Of  stale  example?  When  thou  wilt  enflame, 
How  boldly  those  impediments  stand  forth 
Of  wealth,  of  filial   fear,  law,  kindred,   fame: 
Love's  arms  are  peace,   'gainst   rule,   'gainst  sense,   'gainst 
shame."     (264,  271.) 


TROILUS  AND  CRESSIDA.  387 

Gave  wings  to  my  propension  and  cut  off 
All  fears  attending  on  so  dire  a  project."1 

Attest  is  here  used  in  the  sense  of  bearing  witness2  In 
law,  attestation  is  the  verification,  by  a  witness  or  wit- 
nesses, of  the  truth  of  a  given  state  of  facts,  which  is  in 
issue,  in  a  given  case.3  In  the  law  of  conveyancing,  at- 
testation is  the  verification  of  the  execution  of  the  deed  or 
will,  by  the  witnesses  who  subscribe  and  "attest"  the 
same.4 

Sec.  363.    Damage  and  indemnity  of  war. — 

"Pri.     .     .     .     Thus   one   again   says   Nestor,   from   the 
Greeks ; 
Deliver  Helen  and  all  damage  else — 
As  honour,  loss  of  time,  travel,  expense, 
Wounds,  friends,  and  what  else  dear  that  is  consumed 
In  hot  digestion  of  this  cormorant  tear, — 
Shall  be  struck  off."5 

The  King  here  presents  the  Greek's  offer  to  end  the 
war,  by  payment  of  all  damage,  all  expenses  and  delivery 
of  Helen,  the  real  cause  of  the  Greek  and  Trojan  war. 

Damage,  in  law,  is  the  indemnity  or  compensation  paid 
by  one  who  has  sustained  an  injury,  either  in  his  person, 
property,  or  relative  rights,  through  the  wrongful  act  of 
another.6  The  wrongful  act  of  Paris,  in  ravishing  and 
abducting  the  queen  of  the  Greeks,  is  the  act  for  which 
damages  is  claimed  and  expenses  and  other  indemnity. 
If  damages  are  not  paid  and  the  other  redress  asked  not 
offered,  the  war  is  to  continue,  but  otherwise  it  is  to  be 
stopped.  This  is  the  proposition  or  peace  offering  and 
the  conditions  upon  which  alone  peace  can  be  obtained. 

1  Troilus  and  Cressida,  Act  II,  Scene  II. 

2Rolfe's  Troilus  and  Cressida,  p.  219,  notes. 

3  Bouvier's  Law  Dictionary. 

4Tiedeman's  R.  P.   (3d  ed.). 

5  Troilus  and  Cressida,  Act  II,  Scene  II. 

•1  Kent's  Comm.  (10th  ed.)  630;  Bouvier's  Law  Dictionary. 


388  THE  LAW  IN  SHAKESPEARE. 

Sec.  364.     Laws  protection  of  marital  relation. —      , 

"Hect.     .     .     .     Nature  craves, 

All  dues  be  render'd  to  their  owners;  Now 
What  nearer  debt  in  all  humanity, 
Than  wife  is  to  the  husband?  if  this  law 
Of  nature  be  corrupted,  through  affection ; 
And  that  great  minds,  of  partial  indulgence 
To  their  benumbed  wills,  resist  the  same; 
There  is  a  law,  in  each  well-order'd  nation, 
To  curb  those  raging  appetites  that  are 
Most  disobedient  and  refractory. 
If  Helen,  then,  be  wife  to  Sparta's  king, — 
As  it  is  known  she  is, — these  moral  laws 
Of  nature,  and  of  nations,  speak  aloud 
To  have  her  back  return'd:  Thus  to  persist 
In  doing  wrong,  extenuates  not  wrong. 
But  makes  it  much  more  heavy."1 

Hector  places  in  this  verse,  the  rights  of  the  marital 
relation,  upon  natural  laws.  The  thought  is  that  the 
rights  of  the  husband,  which  attach  by  virtue  of  the  rela- 
tion of  the  marital  contract,  are  founded  in  moral  and 
natural  laws  and  it  is  a  fraud  upon  him  to  trample  these 
just  and  natural  rights  under  foot.  Indeed,  as  the  lan- 
guage indicates,  the  marital  relation  is  the  basis  of  the 
family  or  domestic  obligation,  and  it  is  necessary  for  the 
good  of  society  that  such  legal  relation  is  protected.  Hec- 
tor stands  for  the  clean  and  pure  and  wholesome  things 
in  life  and  only  asks  for  the  benefit  of  the  law  of  the 
domestic  relation,2  for  Menelaus. 

The  husband  is  legally  and  morally,  entitled  to  the 
society  and  affection  of  his  wife  and  can  sue  for  and 
recover  damages  for  the  interference  with  this  relation.3 


xTroilus  and  Cressida,  Act  II,  Scene  II. 

2  Reeve's  Dom.  Rel. 

3  Bishop's  Mar.  &  Div. 

Hector's  conclusion  is  that  what  the  law  does,  as  between  indi- 
viduals, justice  ought  to  do,  between  nations,  as  well.  Rolfe's 
Troilus  and  Cressida,  p.  222,  notes. 


TROILUS  AND  CRESSIDA.  389 

But  Hector  places  the  right  upon  a  broader  and  more  solid 
foundation,  that  of  the  good  of  society,  as  a  whole,  hence 
he  concludes,  "these  moral  laws  of  nature,  and  of  nations, 
speak  aloud,"  in  favor  of  the  right  of  the  husband  of  the 
ravish'd  queen. 

Sec.  365.    A  privileged  man. — 

"Achil.     He  is  a  privileged  man. — Proceed,  Thersites."1 

"A  privileged  man"  is  one  who  has  a  right  to  commit 
some  act,  or  do  some  thing,  but  for  which  privilege  he 
would  not  have  the  right  to  do,  as  one  who  is  recognized  to 
have  the  right  to  speak  slanderous  words,  or  to  write  in  a 
libelous  manner  of  another,  which  he  enjoys  by  reason  of 
being  a  "privileged  man."2  The  expression  is  purely  a 
legal  expression  and  is  frequently  used,  in  legal  proceed- 
ings, especially  in  damage  suits,  for  libel  or  slander,  where 
the  defense  is  thaf  of  a  special  privilege.3 

Sec.  366.    Underwriting  one. — 

"A gam.     .     .     .     Disguise   the   holy   strength   of  their 
command, 
And  underwrite  in  a  deserving  kind 
His  humorous  predominance."4 

To  underwrite  is  to  insure  or  guarantee  a  certain  re- 
sult, as  where  one  underwrites  or  agrees  that  he  will  make 
good  a  certain  loss  in  a  certain  event,  as  an  insurer.5 
The  thought  is  that  his  "humorous  predominance"  shall 
be  underwritten  or  guaranteed. 

troilus  and  Cressida,  Act  II,  Scene  III. 

2  Heard,  Libel  &  Slan.,  Sec.  89. 

3  Ante  idem.  90,  103,  110. 

Diomedes  tells  Troilus  in  Troilus  and  Cressida:  "Dio.  O,  be 
not  mov'd,  prince  Troilus:  Let  me  be  privileg'd  by  my  place,  and 
message,  To  be  a  speaker  free."     (Act  IV,  Scene  IV.) 

4  Troilus  and  Cressida,  Act  II,  Scene  III. 
"Bouvier's  Law  Dictionary. 


390  THE  LAW  IN  SHAKESPEARE. 

Sec.  367.    A  kiss  in  fee-farm. — 

"Pan.  .  .  .  Alas,  the  day,  how  loath  you  are  to 
offend  day-light:  and  t'were  dark,  you'd  close  sooner 
So,  so;  rub  on,  and  kiss  the  mistress.  How  now? 
a  kiss  in  fee-farm?  build  there,  carpenter,  the  air  is 
sweet."1 

Pandarus,  on  seeing  the  lovers  kiss,  asks  if  it  is  to  be  a 
kiss  "in  fee-farm,"  intending  to  enquire  if  there  is  to  be 
no  "fealty"  or  other  obligations,  on  the  part  of  the  one 
kissed,  meaning  to  place  Cressida,  as  the  tenant,  render- 
ing her  rent  to  the  lord  paramount.  "A  fee-farm  tenant" 
was  one  who  held  of  another  in  fee,  or  in  perpetuity  at 
an  annual  rental,  generally  in  kind,  rendering  only  fealty 
and  no  other  services  being  required,  unless  according  to 
the  enfoeffment,  such  were  required.2  Pandarus  advises  the 
full  enjoyment  of  the  relation  the  lovers  occupy  and  with- 
out let  or  hindrance  proposes  that  this  relation  shall  con- 
tinue for  life,  or  forever,  by  the  token  of  the  kiss. 

Sec.  368.     Execution  of  contract  by  parties  "interchange- 
ably".— 

"Pan.  Words  pay  no  debts,  give  her  deeds:  but  she'll 
bereave  you  of  the  deeds  too,  if  she  call  your  activity 
in  question.  What  billing  again?  Here's — In  wit- 
ness whereof  the  parties  interchangeably — Come  in, 
come  in;  I'll  go  get  a  fire."8 

Pandarus  here  suggests  the  pre-contract  of  marriage 
which  will  serve  Cressida  for  a  marriage  contract,  in  law, 
and  actually  closes  the  form  of  the  contract  with  the 
formal  words,  used  in  law,  at  the  end  of  such  contracts, 
i.  e.,  "In  Witness  whereof,  the  parties  interchangeably/' 
of  the  scrivenor,  in  the  preparation  of  such  contracts. 

One  making  a  pre-contract  of  marriage,  was  held  in- 
capable of  afterwards  entering  into  a  similar  contract 

^roilus  and  Cressida,  Act  III,  Scene  II. 
2  2  Bl.  Comm.  43;  Cowel,  Spellman,  Gloss. 
8  Troilus  and  Cressida,  Act  III,  Scene  II. 


TROILUS  AND  CRESSIDA.  391 

with  another;  provided  it  was  made  per  verba  de  presenti, 
it  was  held  to  be,  in  fact,  a  marriage,  with  all  the  legal 
requirements.1 

The  closing  part  of  such  a  contract,  in  recognition  of 
the  mutual  binding  effect  of  the  covenants,  as  those  exist- 
ing interchangeably,  or  inter  partes,  simply  recognizes 
what  the  law  implies,  of  course,  that  the  terms  of  the  con- 
tract apply  to  more  than  one,  or  to  both  parties  to  the 
agreement  alike,  but  the  technical  sense  of  the  expression, 
by  its  long  use  and  currency  is  so  understood  that  it  is 
rarely  dispensed  with,  in  agreements  between  two  or 
more  persons.2 

Sec.  369.    Right  warring  with  right. — 

"Tro.     ...     0  virtuous  fight, 

When   right   with   right  wars,   who   shall   be   most 
right?"3 

In  the  contests  for  the  enforcement  of  right,  right  is 
generally  pitted  against  wrong,  hence  the  anomaly  of 
right  contending  with  right,  suggests  the  difficulty  of 
making  correct  decision. 

Of  course  if  both  parties  were  right,  the  fight  would 
be  a  virtuous  one,  for  virtue  would  dwell  on  both  sides, 
hence  the  conclusion  that  it  would  be  an  open  enquiry 
who  would  be  "most  right." 


Sec.  370.    Consanguinity. — 

"Cres.     ...     I   will   not,   uncle:    I  have   forgot   my 
father ; 
I  know  no  touch  of  consanguinity: 
No  kin,  no  love,  no  blood,  no  soul  so  near  me, 
As  the  sweet  Troilus."4 


1  6  Bacon's  Abr.,  454,  et  seq. 

2  5  Coke,  182;  Lawson  Contracts  (3'  ed.),  405. 
"Troilus  and  Cressida,  Act  III,  Scene  II. 
♦Troilus  and  Cressida,  Act  IV,  Scene  II. 


392  THE  LAW  IN   SHAKESPEARE. 

Cressida  here  denies  the  obligations  of  the  relation 
among  all  the  different  persons  descending  from  the  same 
common  stock  or  ancestor.  Consanguinity  is  either  col- 
lateral or  lineal,  and  it  is  the  latter  kind,  of  which  the 
Poet  speaks,  in  this  verse,  for  Cressida  has  descended  from 
her  father  and  claims  that  she  has  forgotten  him.  She 
declares  that  she  knows  "no  kin,  no  love,  no  blood"  .  .  ; 
so  near  as  the  "sweet  Troilus." 

Sec.  371.    Rejoinders. — 

"Tro.     .     .     .     injury  of  chance 

Puts  back  leave-taking,  justles  roughly  by 
All  time  of  pause,  rudely  beguiles  our  lips 
Of  all  rejoin  dure,  forcibly  prevents 
Our  lock'd  embrasures,  strangles  our  dear  vows 
Even  in  the  birth  of  our  own  laboring  breath."1 

In  pleading,  at  common  law,  the  defendant  had  the 
right  of  rejoinder  or  answer  to  the  plaintiff's  replication, 
or  reply. to  the  original  answer  of  the  defendant,  in  a 
civil  cause.  A  rejoin  dure,  in  pleading  thus  contemplated 
a  former  answer  and  a  former  reply  and  then  a  rejoin- 
dure.2  The  injury  arising  from  the  immediate  separation 
Troilus  treats  as  a  cause  preventing  further  rejoindure,  as 
well  as  the  cause  of  dispensing  with  further  "embrasures," 
even  in  the  birth  of  their  "laboring  breath." 

Lineal  consanguinity  is  that  which  recognizes  the  descent  or 
ascent  in  a  direct  line,  as  daughter  and  parent;  collateral  con- 
sanguinity is  that  which  refers  to  persons  descending  from  the 
same  common  ancestor,  but  not  from  each  other.  2  Bl.  Comm. 
202. 

1  Troilus  and  Cressida,  Act  IV,  Scene  IV. 

2  Coke,  Litt.  304;   Archbold,  Civil  PI.  278. 

This  plea  by  way  of  rejoindure,  in  most  of  the  United  States 
is  now  prevented  and  the  answer  of  the  defendant  is  the  only 
plea  he  has. 


TROILUS  AND  CRESSIDA.  393 

Sec.  372.     Attestation  by  sight  and  hearing. — 

"Tro.     .     .     .     Sith  yet  there  is  a  credence  in  my  heart, 
An  esperance  so  obstinately  strong, 
That  doth  invert  the  attest  of  eyes  and  ears."1 

An  attesting  witness  to  an  instrument,  at  common  law, 
was  one,  who,  at  the  request  of  the  parties  executing  it, 
signed  his  name,  in  evidence  of  his  having  witnessed  the 
execution  of  the  contract.2 

The  attesting  witness  was  not  required  to  witness  the 
parties  execute  the  instrument,  but  it  was  only  required 
that  he  sign  in  their  presence,  at  their  request  and  that 
they  acknowledge  that  they  had  executed  it.3  Of  course 
if  he  actually  saw  and  heard  them  say  they  signed  it,  then 
he  would  attest  it  by  both  "sight  and  hearing" ;  then  he 
would  have  the  best  primary  evidence  of  the  fact  attested, 
or  proved,  and  Troilus  here,  wishes  that  his  eyes  and  ears 
had  deceived  him,  or  that  this  primary  evidence  should 
prove  wrong. 

troilus  and   Cressida,   Act  V,   Scene   II. 

2  3  Campb.  232. 

3  2  Greenl.  Evid.,  Sec.  678. 


CHAPTER  XXVII. 

"TIMON  OF  ATHENS." 

Sec.  373.  Pawn. 

374.  Death  penalty  for  homicide. 

375.  Joint  and  corporate  action. 

376.  Hereditary  taints. 

377.  Pity  the  virtue  of  Law. 

378.  Plunging  into  Law. 

379.  Defending  manslaughter. 

380.  Killing  in  self-defense. 

381.  Felon  in  irons. 

382.  "Law  is  strict." 

383.  A  cynic's  view  of  Law — Thievery  justified. 

384.  Bawds  not  competent  witnesses. 

385.  Pleading  false  titles. 

386.  The  scope  of  Justice. 

387.  Answering  public  Laws. 

Sec.  373.    Pawn.— 

"Old.  Ath.     Most  noble  lord, 

Pawn  me  to  this  your  honour,  she  is  his."1 

A  pledge  or  pawn  is  a  bailment  of  personal  property  as 
security  for  some  debt  or  engagement.2  The  Old  Athenian 
asks  Timon  of  Athens  to  pledge  or  pawn  his  honour, 
instead  of  his  personal  property  and  he  will  take  this 
as  security  for  the  performance  of  the  engagement  re- 
ferred to.  In  other  words,  he  will  consent  to  the  alliance, 
if  the  honour  of  Timon  is  given  him,  as  security  that  the 
husband  of  his  daughter  shall  be  endowed  equally  with 
his  daughter. 


1  Timon  of  Athens,  Act  I,  Scene  I. 

8  Story,  Bailments,  Sec.  286;  Lawson,  on  Bailments,  sec.  1. 

Alcibiades  thus  pleads  for  the  life  of  his  client  in  Timon  of 
Athens:  "Alcib.  .  .  .  And,  for  I  know  your  reverend  ages 
love,  security,  I'll  pawn  my  victories,  all  my  honour  to  you,  upon 
his  good  returns."     (Act  III,  Scene  V.) 

(394) 


TIMON  OF  ATHENS.  395 

Sec.  374.    Death  penalty  for  homicide. — 

"Tim.     Whither  art  going? 

Apem.     To  knock  out  an  honest  Athenian's  brains.       ■ 

Tim.     That's  a  deed  thou'lt  die  for. 

Apem.     Right,  if  doing  nothing  be  death  by  the  law."1 

Timon  here  advises  Apemantus  that  under  the  Athenian 
law,  to  knock  out  the  brains  of  an  Athenian,  will  subject 
him  to  the  death  penalty,  for  homicide  was  punishable 
by  death  by  the  law  of  Athens.2  But  the  philosopher 
reminds  him  that  his  threat  was  to  knock  out  the  brains 
cf  an  "honest  Athenian"  and  intimates  that  since  he 
could  not  find  such  a  one,  his  offense  would  be  doing 
nothing. 

Sec.  375.    Joint  and  corporate  action. — 

"Flav.     .     .     .     They  answer,  in  a  joint  and  corporate 
voice, 
That  now  they  are  at  fall,  want  treasure,  cannot 
Do  what  they  would."3 

"A  joint  and  corporate  voice,"  would  be  as  one  body, 
or  with  one  voice,  since  a  corporate  entity,  in  law,  is  an 


Aufidius,  in  condemning  Coriolanus,  for  sparing  Rome,  said: 
"Auf.  I  rais'd  him  and  I  pawn'd  mine  honour  for  his  truth." 
(Act  V,  Scene  VI.) 

Speaking  of  the  lax  morals  of  Antony,  Caesar  said  to  Lepidus. 
in  Antony  and  Cleopatra: 
"Caes.     .    .     .    'tis    to    be    chid 

As  we  rate  boys;  who,  being  mature  in  knowledge, 
Pawn  their  experience  to  their  present  pleasure, 
And  so  rebel  to  judgment."  (Act  I,  Scene  IV.)  ' 

Imogen,  in  her  talk  with  Iachimo,  in  Cymbeline,  agrees,  if  he 
leaves  his  alleged  box  of  jewels  in  her  care,  to  "pawn"  her 
"honour  for  their  safety."     (Act  I,  Scene  VII.) 

In  King  Lear,  Kent  says  to  the  King:  "My  life,  I  never  held, 
but  as  a  pawn,  To  wage  against  thine  enemies."     (Act  I,  Scene  L) 

1  Timon  of  Athens,  Act  I,  Scene  I. 

2  Hugo's  Histoire  du  Droit,  161. 

3  Timon  of  Athens,  Act  II,  Scene  II. 


396  THE  LAW  IN  SHAKESPEARE. 

association  of  persons  united  into  one  legal  person,  or 
corporation.1  Flavius  tells  his  master  that  all  the  friends 
he  had  applied  to  had  the  same  excuse,  or  with  one  "joint 
and  corporate  voice"  gave  him  the  same  answer. 

Sec.  376.    Hereditary  taints. — 

"Tim.     .     .     .     These  old  fellows 

Have  their  ingratitude  in  them  hereditary: 
Their  blood  is  cak'd,  'tis  cold,  it  seldom  flows."2 

As  in  the  description  of  the  character  of  Richard  III 
and  other  plays,  the  Poet  here  indicates  that  he  believed 
in  hereditary  transmission  of  peculiar  types  or  traits. 
Any  kind  of  property  which  is  the  subject  of  inheritance 
is  called  hereditary  property  or  hereditament?3  Of  course 
ingratitude  is  not  a  species  of  property  that  can  be  so  trans- 
mitted, but  like  other  hereditary  taints  or  peculiarities 
might  be  said  to  appear  in  successive  generations. 

1  2  Bacon's  Abr.,  436. 

2Timon   of  Athens,   Act   II,   Scene   II. 

8  2  Bl.  Comm.  17;  Coke,  Litt,  5b. 

Timon  thus  curses  Athens  and  her  institutions:  "The  Senator 
shall  bear  contempt  hereditary,  the  beggar  native  honour."  (Act 
IV,  Scene  III.) 

Timon  of  Athens  tells  Apementus:  "Tim.  If  thou  wilt  curse, 
thy  father,  that  poor  rag,  Must  be  thy  subject;  who,  in  spite, 
put  stuff  to  some  she-beggar,  and  compounded  thee,  poor  rogue 
hereditary."     (Act  IV,  Scene  III.) 

Menenius  tells  Brutus,  in  Coriolanus:  "Men.  .  .  .  Yet  you 
must  be  saying  Marcius  is  proud;  who,  in  a  cheap  estimation,  is 
worth  all  your  predecessors,  since  Deucalion;  though,  perad- 
venture,  some  of  the  best  of  them  were  hereditary  hangmen." 
(Act  II,  Scene  I.) 

On  Caesar's  complaint  of  Antony's  faults,  Lepidus  is  made  to 
say,  in  Antony  and  Cleopatra: 

"Lep.-  His  faults,  in  him,  seem  as  the  spots  of  heaven, 
More  fiery  by  night's  blackness;   hereditary, 
Rather  than  purchas'd;   what  he  cannot  change, 
Than  what  he  chooses."  (Act  I,  Scene  IV.) 


TIMON  OF  ATHENS.  397 

Sec.  377.    Pity  the  virtue  of  law.— 

"Alcib.     I  am  an  humble  suitor  to  your  virtues; 
For  pity  is  the  virtue  of  the  law, 
And  none  but  tyrants  use  it  cruelly."1 

Pity  or  mercy  is  said  to  be  the  saving  grace  of  all  sys- 
tems of  criminal  jurisprudence,  and  the  partial  or  total 
remission  of  punishment,  before  sentence,2  seems  to  call 
forth  the  universal  approval  of  Shakespeare,  for  with  his 
broad  view  of  human  life  and  his  charity,  it  is  but  nat- 
ural that  he  would  always  "temper  justice  with  mercy." 
Such  is  peculiarly  the  Poet's  sphere,  for  the  emotional 
side  of  life  could  but  appeal  to  the  imagination  of  one 
so  thoroughly  attuned  to  the  weaknesses  and  foibles  of 
his  kind  and  possessed  himself  with  the  "divine  gift  of 
pity,"  he  would  naturally  want  to  temper  harsh  laws 
with  this  virtue. 

Sec.  378.     Plunging  into  law. — 

"Alcib.     .     .     .     It  pleases  time  and  fortune,  to  lie  heavy 
Upon  a  friend  of  mine,  who,  in  hot  blood, 
Hath  stepp'd  into  the  law,  which  is  past  depth 
To  those  that,  without  heed,  do  plunge  into  it."3 

The  old  General  in  this  verse,  is  made  to  state  a  fact 
well  known  to  lawyers,  that  when  one  rushes  into  law, 
with  a  cause,  he  has  frequently  a  long  while  to  relent  at 
his  leisure.  The  moral  suggested  by  the  Poet  is  that  one 
should  be  quite  sure  of  one's  position  before  rushing  into 
law,  for  otherwise  he  may  discover,  unless  he  heed,  that 
he  is  "past  depth"  in  the  meshes  of  the  law. 

1  Timon  of  Athens,  Act  III,  Scene  V. 
21  Kent's  Comm.  265. 

The  false  Tamora,  is  made  to  plead  for  mercy,  in  Titus  Andro- 
nicus,  as  follows: 

"Tam.    Wilt  thou  draw  near  the  nature  of  the  gods? 
Draw  near  them,  then,  in  being  merciful; 
Sweet  mercy  is  nobility's  true  badge."     (Act  I,  Scene  II.) 
3  Timon  of  Athens,  Act  III,  Scene  V. 


398  THE  LAW  IN  SHAKESPEARE. 

Sec.  379. — Defending  manslaughter. — 

"1  Sen.     You  undergo  too  strict  a  paradox, 
Striving  to  make  an  ugly  deed  look  fair: 
Your  words  have  took  such  pains,  as  if  they  labour'd 
To  bring  manslaughter  into  form,  set  quarrelling 
-    Upon  the  head  of  valour;  which,  indeed, 
'       Is  valour  misbegot,  and  came  into  the  world 
!       When  sects  and  factions  were  newly  born."1 

The  Senator  is  made  to  suggest  to  Alcibiades  that  he 
actually  puts  a  good,  seemly  outside  upon  the  crime  of 
manslaughter,  to  assist  his  client  to  avoid  the  penalty  for 
his  rash  act  in  taking  the  life  of  one  of  his  fellows.  Man- 
slaughter is  the  unlawful  killing  of  a  human  being,  with- 
out malice,  express  or  implied.2  As  Alcibiades  and  the 
Senator  are  careful  not  to  call  the  killing,  in  this  instance 
by  the  name  of  murder  or  homicide,  but  to  discriminate, 
the  element  of  willfulness  or  malice  being  wanting,  the 
Poet  of  course  knew  and  understood  the  different  elements 
that  go  to  constitute  the  various  degrees  of  this  offense. 

Sec.  380.    Killing  in  self-defense. — 

"Alcib.     ...     To  kill,  I  grant,  is  sin's  extremest  gust, 
But,  in  defense,  by  mercy,  'tis  most  just."3 

The  right  of  self-defense  is  said  to  be  based  upon  the 
first  law  of  nature  and  so  the  courts  and  all  laws  recognize 
that  to  take  human  life  in  the  defense  of  one's  own  per- 
son, is  not  murder.4  Alcibiades  urged  this  defense  for 
his  client,  in  an  appropriate  and  proper  plea,  for  what 
criminal  lawyer  could  select  more  appropriate  words  in 
which  to  couch  his  plea  than  by  admitting  the  crime  of 
murder,  he  drew  the  just  distinction  between  the  willful 
killing  and  the  defense  of  one's  person,  in  the  Poet's 
words? 


1  Timon  of  Athens,  Act  III,  Scene  V. 

2  4  Bl.  Comm.  190. 

•  Timon  of  Athens,  Act  III,  Scene  V. 
41  Bl.  Comm.  180;    2  Rolle,  Abr.,   547. 


TIMON  OF  ATHENS.  399 

Sec.  381.    Felon  in  irons. — 

"Alcib.     ...     if  there  be  such  valor  in  the  bearing, 
what  make  we 
Abroad?  why  then,  women  are  more  valiant, 
That  stay  at  home,  if  bearing  carry  it; 
And  th'  ass,  more  captain  than  the  lion;  the  felon, 
Loaded  with  irons,  wiser  than  the  judge, 
If  wisdom  be  in  suffering."1 

A  felon  is  one  who  has  been  convicted  and  sentenced 
for  a  felony,  or  for  the  higher  degrees  of  crime.2  Until 
sentence,  the  party  accused  would  not  necessarily  be  kept 
in  irons,  so  the  correct  word  is  used  to  indicate  one,  tried 
and  convicted  and  properly  placed  in  irons.  If  "wisdom 
be  in  suffering,"  the  pleader  urges  that  the  "felon,  loaded 
with  irons"  could  be  considered  "wiser  than  the  judge," 
for  of  course  his  suffering  is  the  more  severe. 

Sec.  382.     "  Law  is  strict. '  '— 

"A  Icib.     .     .     .     If  by  his  crime,  he  owes  the  law  his  life, 
Why,  let  the  war  receive't,  in  valiant  gore; 
For  law  is  strict,  and  war  is  nothing  more."3 

Alcibiades  urges  that  his  client  may  be  sent  to  war  to 
fight  for  his  country,  instead  of  being  made  to  suffer  the 
penalty  of  the  law  and  put  to  death,  where  he  can  do  him- 
self or  his  country  no  service. 

The  plea  is  that  frequently  urged  for  felons,  by  their 
legal  representatives  and  by  custom  the  plea  was  fre- 
quently granted.4 

The  statement  that  the  "law  is  strict,"  accords  with  the 
Poet's  general  idea  of  law,  for  he  recognized  the  law  as 
an  iron  rule  of  conduct  that  must  not  be  removed  for  the 
benefit  of  individuals,  but  enforced  for  the  benefit  of  the 


1  Timon  of  Athens,  Act  III,  Scene  V. 
3  Coke,  Litt.  391. 

3  Timon  of  Athens,  Act  III,  Scene  V. 
4Benet,  Mil.  Law;    Selden,  Tit.  Hon. 


400  THE  LAW  IN  SHAKESPEARE. 

public  at  large.  In  continuously  having  his  characters 
seek  a  mollifying  construction  of  the  law,  he  sought  to 
assist  it,  in  places  where  its  strictness  and  universality 
needed  softening  or  tempering. 

Sec.  383.    A  cynics'  view  of  law — Thievery  justified. — 

uTimon.     .     .     .     I'll  example  you  with  thievery: 
The  sun's  a  thief,  and  with  his  great  attraction 
Robs  the  vast  sea;  the  moon's  an  arrant  thief, 
And  her  pale  fire  she  snatches  from  the  sun ; 
The  sea's  a  thief,  whose  liquid  surge  resolves 
The  moon  into  salt  tears ;  the  earth's  a  thief, 
That  feeds  and  breeds  by  a'composture  stolen 
From  general  excrement;  each  thing's  a  thief. 
The  laws,  your  curb  and  whip,  in  their  rough  power 
Have  uncheck'd  theft."1 

In  attempting  to  induce  the  bandits  to  further  acts  of 
thievery  and  robbery,  by  instancing  the  natural  sources 
of  power  and  growth — as  though  it  was  a  natural  law  to 
steal — the  Poet  presents  a  misanthrop's  view  of  life  as  an 
inducement  whereby  he  can  cause  misery  to  his  fellows. 
Of  course  the  very  opposite  of  this  view  is  the  correct 
principle  to  act  upon,  for  if  thievery  and  lawlessness  will 
cause  misery — which  is  Timon's  object — then  an  adher- 
ence to  the  principle  which  compels  a  due  regard  to  the 
rights  of  others,  will,  by  a  parity  of  reasoning,  bring 
happiness. 

In  calling  the  bandits'  attention  to  the  fact  that  the 
laws  not  only  curbed,  controlled  and  prevented  their  acts 
of  robbery  and  pillage,  but  likewise  whipped  them,  or 
punished  them  for  their  infractions,  the  Poet  grasped  and 
expressed  the  dual  objects  of  criminal  laws,  not  only  to 
command  the  right,  but  to  also  punish  the  wrong,  with- 
out which  they  would,  of  course,  be  ineffectual,  as  laws.2 


1Timon  of  Athens,  Act  IV,  Scene  III. 

2  Of   this    passage,    Doctor    Rolfe    observes,    in    his    Timon    of 
Athens   (notes,  p.  212):     "This  seems  to  be  a  cynical  reference 


TIMON  OF  ATHENS.  401 

Sec.  384.    Bawds  not  competent  witnesses. — 

"Tim.     Hold  up,  you  sluts, 

Your  aprons  mountant:  You  are  not  oathable, — 
Although,  I  know,  you'll  swear,  terribly  swear, 
Into  strong  shudders,  and  to  heavenly  agues, 
The    immortal    gods    that    hear    you, — spare    your 
oaths."1 

Timon  tells  Phrynia  and  Timandra,  that  because  of 
their  infamous  lives,  they  are  not  competent  witnesses; 
that  they  are  not  oathable  or  legally  competent  to  testify. 
Infamous  persons  were  not  competent  witnesses,  at  com- 
mon law  and  all  persons  who  did  not  regard  the  binding 
effect  of  an  oath,  such  as  persons  who  were  convicted  of 
dissolute,  immoral  lives,  could  not  take  an  oath,  in  court.2 
In  most  countries,  a  general  reputation  for  lack  of  chastity, 
in  male  or  female,  affects  the  competency  of  the  witness 
for  credibility,  but  not  otherwise.  However,  Timon  tells 
these  infamous  women  what  the  law  was  correctly,  for 
their  lives  were  so  notorious  that  their  oaths  would  not 
have  been  received  in  a  court  of  justice. 


to  the  arbitrary  exercise  of  legal  authority  in  taxation  and  sim- 
ilar exactions;  the  laws,  though  they  restrain  and  punish  petty 
thieves,  like  you,  nevertheless,  by  the  might  that  makes  right, 
plunder  without  restraint."  Then  he  adds:  "I  have  met  with  no 
comment  on  the  passage,  and  can  suggest  no  other  explanation  of 
it,  but  I  have  little  doubt  that  this  is  the  meaning,"  and  of  this, 
it  seems  puerile  to  add,  that  I  have  reached  the  same  conclusion. 

1  Timon  of  Athens,  Act  IV,  Scene  III. 

»1  Greenleaf  Evid.,  373,  374;   3  Bacon's  Abr.,  486,  507. 

At  common  law,  the  objections  to  a  witness  were  such  as  were 
absolute  or  such  as  applied  only  between  particular  persons.  Of 
the  former  kinds  were  "an  infamous  person,  as  an  usurer,  or  one 
condemned  by  a  public  judgment;  a  perjured  person;  a  woman 
who  was,  or  had  been  a  common  prostitute  and  all  persons  who 
were  stigmatized  by  the  secular  laws."  (IV  Reeve's  History 
Eng.  Law,  p.  80.) 


402  THE  LAW  IN  SHAKESPEARE. 

Sec.  385.     Pleading  false  titles. — 

"Tim.     .     .     .     Crack  the  lawyers  voice, 

That  he  may  never  more  false  title  plead, 
Nor  sound  his  quillets  shrilly."1 

This  verse  is  one  frequently  quoted  by  lawyers.  Plead- 
ing for  one's  title  to  property  is  one  of  the  ordinary  func- 
tions of  the  lawyer.  The  Poet  here  uses  satire  to  show 
that  the  lawyer  is  accustomed  to  plead  for  false  titles  as 
well  for  those  which  are  true.  He  asks  that  his  voice 
may  be  cracked,  so  that  he  may  be  compelled  to  stop  this 
practice  and  of  sounding  his  "quillets  shrilly." 

Of  course,  professionally,  if  one  has  a  title  at  all,  whether 
it  is  the  best  title  to  property  or  not,  he  is  entitled  to  have 
his  right  thereto  passed  on  by  a  competent  court,  for  until 
this  is  done,  it  cannot  be  determined  what  his  rights  in 
the  premises  were.  In  other  words,  every  asserted  right 
is  entitled  to  a  representative  and  the  fact  that  a  lawyer 
speaks  in  a  losing  cause,  is  not  always  evidence  that  his 
cause  was  wrong.  But,  of  course,  Timon  was  soured,  in 
a  measure  on  the  world,  and  that  is  why  he  urged  such 
satire  against  the  lawyer. 

Sec.  386.    The  scope  of  Justice. — 

"Alcib.     .     .     .     Till  now  you  have  gone  on  and  fhTd 
the  time 
With  all  licentious  measure,  making  your  wills 
The  scope  of  justice;  till  now  myself  and  such 
As  slept  within  the  shadow  of  your  power 
Have  wander'd  with  our  travers'd  arms  and  breath'd 
Our  sufferance  vainly."2 

Justice  has  been  defined  as  "the  constant  and  perpetual 
will  to  render  unto  every  man  his  own."3  This  generous 
and  altruistic  idea  of  the  virtue  is  an  essential  for  it? 


1  Timon  of  Athens,  Act  IV,  Scene  III. 

2  Timon  of  Athens,  Act  V,  Scene  IV. 

8  Touillier,  Droit,  Civ.  Fr.  tit.  prel.  n.  5. 


TIMON  OF  ATHENS.  403 

enjoyment,  for  otherwise,  expediency  too  often  will  over- 
come justice  and  prevent  its  attainment.  While  true  that 
the  individual  or  general  interest  of  mankind  largely 
determines  justice,  in  a  given  case,  and  the  prevalent  sense 
of  justice  is  encumbered  with  the  hypothesis  of  innate 
notions  of  the  virtue  generally,  it  is  not  true,  in  civilized 
states  that  the  expedient  or  selfish  always  controls  or  shapes 
the  ideas  of  justice  which  obtain,  but  the  virtue  is  generally 
cherished  from  the  innate  love  of  our  fellowmen,  and  in- 
cidentally of  his  rights,  without  which  our  own  are  liable 
to  suffer,  as  our  own  ideals  of  justice  propagate  a  disre- 
gard for  this  virtue.  The  contrast  between  the  just  and 
the  expedient  is  apparent,  when  it  exists,  and  the  natural 
love  of  mankind  for  his  fellows,  coupled  with  the  primal 
idea  of  self-preservation,  and  the  necessity  of  recognizing 
justice,  as  the  groundwork  of  our  existence,  makes  the 
recognition  of  justice  such  a  moral  necessity  that  no  society 
can  do  other  than  exalt  the  proper  ideals  of  justice  and 
equality,  which  hopes  to  prosper.  Hence,  it  is  that  Alci- 
biades,  in  his  address  to  the  Senators,  pointed  out  a  peril 
at  the  very  basis  of  the  Government,  when  he  called  their 
attention  to  the  fact  that  their  idea  of  justice  had  been  con- 
fined into  altogether  too  narrow  a  limit  and  that  the  rights 
of  others  were  subverted  to  whatever  they  choose  to  recog- 
nize, by  their  wills  In  these  observations,  the  Poet  was 
striking  at  the  foundation  of  society  and  expressed  the 
philosophy  which  underlies  civilization. 

Sec.  387.    Answering  public  laws. — 

"Alcib.     .     .     .     not  a  man 

Shall  pass  his  quarter,  or  offend  the  stream 
Of  regular  justice,  in  your  city's  bounds, 
But  shall  be  remedied,  to  your  public  laws, 
At  heaviest  answer."1 


^imon  of  Athens,  Act  V,  Scene  V. 


404  THE  LAW  IN  SHAKESPEARE. 

Alcibiades  here  promises  that  the  criminal  or  public 
laws,  for  the  redress  of  public  wrongs  within  the  munici- 
pality of  Athens,  shall  be  rigorously  enforced.  That  the 
"stream  of  regular  justice,"  shall  not  be  interfered  with, 
but  that  it  shall  be  permitted  to  flow  as  formerly  and  with- 
out let  or  hindrance  so  far  as  he  is  concerned. 


CHAPTER  XXVIII. 


Sec. 


"CORIOLANUS. 

388. 

Piercing  statutes. 

389. 

Manacles. 

390. 

Alias. 

391. 

Complaint. 

392. 

Bencher. 

393. 

Pleaders. 

394. 

Tarpeian  rock. 

395. 

Resisting  Law. 

396. 

Process. 

397. 

Death  by  the  Wheel. 

398. 

Trial  by  Comitia. 

Sec.  388.    Piercing  statutes. — 

"1  Git.  .  .  .  repeal  daily  and  wholesome  act  estab: 
lished  against  the  rich;  and  provide  more  piercing 
statutes  daily,  to  chain  up  and  restrain  the  poor.  If 
the  wars  eat  us  not  up,  they  will;  and  there's  all  the 
love  they  bear  us."1 

A  statute  is  generally  defined  as  a  law  enacted  by  the 
legislative  power,  or  a  written  expression  of  the  legislative 
will,  in  the  form  necessary  to  make  it  the  law  of  the  state 
or  country  where  it  is  to  obtain.2  The  Poet  many  times 
speaks  of  "biting  statutes"  and  "piercing  statutes,"  show- 
ing that  he  had  the  lawyers'  regard  for  such  strict  legis- 
lative provisions  as  made  it  hard  upon  the  individual  citi- 
zen, when  enforced,  with  the  Poet's  sympathy  for  the  in- 
dividual in  any  hardship  that  he  suffered,  even  though  it 
resulted  from  the  enforcement  of  the  law.  Speaking  of 
the  repeal  of  such  statutes  as  were  enacted  for  the  benefit 
of  the  poor,  the  idea  is  that  such  acts  were  rendered  nuga- 
tory by  inconsistent  provisions,  by  which  an  implied  re- 


^oriolanus,  Act  I,  Scene  I. 

'Bacon,  Abr.,  Statutes;  Coke,  2'  Inst.,  200;  Bouvier's  Law  Diet. 

(405) 


406  THE  LAW  IN  SHAKESPEARE. 

peal  of  a  previous  statute  may  be  effected.1  The  legal 
observations  in  these  lines  are  made  in  strict  accord  with 
the  struggle  then  going  on,  between  the  plebeians  and 
the  patricians,  for  supremacy  and  show  an  accurate  knowl- 
edge, not  only  of  the  legal  requirements  of  legislative 
enactments,  but  also  of  the  historical  facts  existing  at  this 
period  of  the  world's  history. 

Sec.  389.    Manacles. — 

"Com.  If  'gainst  yourself  you  be  incens'd,  we'll  put  you 
(Like  one  that  means  his  proper  harm),  in  man- 
acles."2 

"Manacles"  are  hand-cuffs,  or  other  fastenings  for  the 
hands  or  limbs,  to  shackle,  confine  or  restrain  the  use  of 
the  limbs  or  natural  powers,  so  that  criminal  or  insane  per- 
sons eannot  escape  or  inflict  bodily  injury  upon  others.3 

*16  Pet.  342. 

The  Poet  refers  to  "Biting  Statutes"  in  2'  Henry  VI.  (Act 
IV,  Scene  VII.) 

aCoriolanus,  Act  I,  Scene  IX. 
'Webster's  Dictionary. 

Volumnia  tells  Coriolanus,  in  her  appeal  for  clemency,  and  the 
safety  of  Rome:  "Vol.  .  .  .  for  either  thou  Must,  as  a  for- 
eign recreant,  be  led,  with  manacles,  through  our  streets,  or  else 
triumphantly,  tread  upon  thy  country's  ruin."  (Act  V,  Scene 
III.) 

Cleopatra  thus  consoles  herself  with  her  approaching  death: 
"Cleo.    .     .     .    And  it  is  great 

To  do  that  thing  that  ends  all  other  deeds; 

Which  shackles  accidents,  and  bolts  up  change; 

Which   sleeps,   and   never   palates   more   the   dung, 

The  beggar's  nurse  and  Caesar's."         (Act  V,   Scene   II.) 

Posthumus  puts  the  ring  on  Imogen's  finger,  in  Cymbeline,  and 
tells  her:  "For  my  sake,  wear  this;  it  is  a  manacle  of  love; 
I'll  place  it  upon  this  fairest  prisoner."     (Act   I,    Scene  II.) 

The  Messenger  said,  in  Cymbeline:  "Knock  off  his  manacles; 
bring  your  prisoner  to  the  king."     (Act  V,  Scene  IV.) 


CORIOLANUS.  407 

Sec.  390.     Alias.— 

''Men.  Why,  then  you  should  discover  a  brace  of  un- 
meriting,  proud,  violent,  testy  magistrates  (alias 
fools,)  as  any  in  Rome."1 

Alias  is  a  Latin  term,  meaning  "otherwise,"  when  used 
in  the  sense  in  which  it  is  here  employed.  It  literally 
means,  another,  as  it  is  generally  used  and  an  alias  writ 
is  one  used  after  another  writ  has  already  been  issued  in 
the  same  cause. 

Sec.  391.     Complaint.— 

"Men.  I  am  known  to  be  a  humorous  patrician,  and  one 
that  loves  a  cup  of  hot  wine,  with  not  a  drop  af 
allaying  Tiber  in't ;  said  to  be  something  imperfect, 
in  favoring  the  first  complaint."2 

The  speaker  here  describes  himself  as  a  humorous  patri- 
cian, who  takes  his  drinks  "straight,"  or  without  dilution, 
and  a  weakness  that  makes  him  favor  the  "first  com- 
plaint." A  complaint  is  the  allegation,  made  to  a  proper 
officer,  that  some  other  person  has  been  guilty  of  a  desig- 
nated offense,  with  an  offer  to  prove  the  fact,  and  a  re- 
quest that  the  offender  may  be  punished.  It  is  a  tech- 
nical term,  descriptive  of  proceedings  before  magistrates.3 

One  so  full  of  sympathy  for  his  fellow-man,  that  after 
hearing  his  complaint,  he  would  be  so  moved  as  to  always 
favor  the  one  first  heard,  would  be  so  emotional  and  so 
loyal  to  his  first  impulses,  as  to  be  more  or  less  "imper- 
fect," in  this  particular,  as  the  Poet  here  intimates. 

Sec.  392.    Bencher.— 

"Bru.  Come,  come,  you  are  well  understood  to  be  a  per- 
fecter  giber  for  the  table,  than  a  necessary  bencher 
In  the  Capitol."4 

1Coriolanus,  Act  II,  Scene  I. 
2Coriolanus,  Act  II,  Scene  I. 
sll  Pick.  (Mass.)  436. 
4Coroilanus,  Act  II,  Scene  I. 


408  THE  LAW  IN  SHAKESPEARE. 

Brutus  thus  charges  that  Menelaus  was  a  better  "after 
dinner  speaker"  than  one  to  dispense  justice  in  the  Cap- 
itol. "Bench"  is  a  tribunal  for  the  administration  of  jus- 
tice and  a  "Bencher"  is  one  who  occupies  the  bench  and  so 
dispenses  justice.1  A  "Bencher"  at  English  law,  was  also 
one  who  was  a  senior,  at  the  Inns  of  Court  and  was  accord- 
ingly entrusted  with  the  direction  or  government  of  the 
Inn,  with  the  absolute  power  of  punishing  barristers  guilty 
of  misconduct,  by  admonishing  or  rebuking  them;  by 
forbidding  them  to  dine  in  the  hall,  or  by  expelling  them.2 

Sec.  393.    Pleaders.— 

"Bru.     We  must  suggest  the  people,  in  what  hatred 
He  still  hath  held  them ;  that,  to  his  power,  he  would 
Have  made  them  mules,  silenc'd  their  pleaders,  and 
Disproportioned  their  freedoms."3 

Brutus  here  threatens  to  incite  the  people  by  appealing 
to  their  prejudice  against  Coriolanus,  caused  by  his  ad- 
verse attitude  and  friendliness  for  the  patricians  and 
against  the  plebeians.     He  would  tell  them  that  he  would 


1  Bacon,  Abr.,  Courts;  Viner,  Abr.,  Courts. 
a Wharton's  Law  Lexicon,   (2  Lond.  Ed.);   Bouvier's  Law  Dic- 
tionary. 

The  Romans  used  the  word  triounalia,  to  indicate  the  seats  of 
the  higher  judges,  and  sub-sella,  to  refer  to  those  of  the  lower 
judges.     I  Reeve's  Hist.  Eng.  Law,  4;   Spellman,  Gloss.  Bancus. 

The  Court  of  Common  Pleas,  in  England,  was  formerly  called 
Bancus,  the  Bench,  to  distinguish  it  from  Bancus  Regis,  the 
King's  Bench.     Viner,  Abr.,  Courts   (n.  2). 

3  Coriolanus,  Act  II,  Scene  I. 

In  Titus  Andronicus,  Saturninus  is  made  to  say: 
"Sat.    Defend  the  justice  of  my  cause  with  arms; 
And,  countrymen,  my  loving  followers, 
Plead  my   successive   title  with   your   swords." 

(Act  I,  Scene  I.) 


CORIOLANUS.  409 

allow  them  no  voice  at  all,  in  the  affairs  of  government; 
would  deny  their  authority  by  vote  in  the  comitia,  to  ratify 
or  endorse  the  acts  of  public  magistrates  and  that  he  would 
make  them  mere  "mules,"  to  perform  their  duties  of 
citizenship  in  silence,  and  deny  them  the  right  of  their 
tribunes  to  speak  for  them  and  in  their  interests  and  be- 
half. Pleading  is  here  used  in  the  sense  of  making  a 
forensic  argument,  for  the  populace,  which  is  not  its 
strict  use  in  the  profession. 


Sec.  394.     Tarpeian  rock. — 

11  Sic.     Therefore,  lay  hold  of  him ; 

Bear  him  to  the  rock  Tarpeian,  and  from  thence 
Into  destruction  cast  him."1 

The  whole  of  the  Capitoline  hill  was  originally  called 
by  the  name  of  Tarpeian  rock,  but  the  term  was  latterly 
confined  to  a  portion  of  the  southern  part  of  the  rock, 
which  was  very  precipitous.  There  is  a  legend  that  in 
the  time  of  Romulus,  a  vestal -virgin,  named  Tarpeia,  the 
daughter  of  St.  Tarpeius,  governor  of  the  Romans,  being 
bribed  by  gold  by  the  soldiers  of  the  Sabines,  opened  a 
gate  to  the  fortress,  to  admit  the  Sabine  king,  who  wTith 
his  soldiers  had  come  to  revenge  the  rape  of  the  Sabine 
women,  and  Tarpeia  was  crushed  and  buried  on  a  part 
of  the  hill,  which  bears  her  name. 

The  rock  subsequently  became  used  for  the  killing  of 
persons  condemned  on  the  charge  of  aspiring  to  restore 
the  monarchy,  during  the  republic,  or  of  treason  to  the 
State,  such  adjudged  criminals  being  hurled  from  the 
rock,  and  the  famous  Manlius,  the  victorious  defender 
of  the  capital,  during  the  invasion  of  the  Gauls,  lost  his 
life  in  this  way.2 

1  Corlolanus,  Act  III,  Scene  I. 
'Gibbon,  Niebuhr,  Arnold. 


410  THE  LAW  IN  SHAKESPEARE. 

Sec.  395.    Resisting  Law. — 

"Sic.     ...     he  hath  resisted  law, 

And  therefore  law  shall  scorn  him  further  trial 
Than  the  severity  of  the  public  power, 
Which  he  so  sets  at  nought."1 

Sicilius  declares  that  one  who  has  scorned  the  forms  of 
law,  should  be  dealt  with  in  a  summary  manner,  as  an 
outlaw  and  in  this  instance  that  Coriolanus  was  entitled 
only  to  a  trial  by  the  comitia,  or  the  vote  of  the  people, 
whose  power  he  had  spurned.  This  verse  shows  the 
Poet's  respect  for  law,  in  the  abstract,  as  the  medium 
through  which  the  rights  of  the  citizens  are  enjoyed. 
"He  hath  resisted  law,"  as  presented  here,  is  a  serious 
charge  and  one  that  the  speaker  believes  entitles  the  party 
guilty  of  such  offense  to  no  legal  protection.  Like  poor 
►Shylock's  plea,  when  he  "stands  for  law,"  this  illustrates 
the  deep  insight  into  the  world  of  law,  as  the  only  correct 
medium  through  which  the  proper  ideals  of  equality  and 
justice  can  be  attained  and  shows  the  lawyer's  respect 
for  the  law,  in  the  abstract,  that  ought  to  be  better  under- 
stood by  all  citizens. 

Sec.  396.    Process.— 

"Men.     One  word  more,  one  word. 

This  tiger-footed  rage,  when  it  shall  find 
The  harm  of  unscann'd  swiftness,  will,  too  late, 
Tie  leaden  pounds  to  his  heels.     Proceed  by  process ; 
Lest  parties  (as  he  is  belov'd)  break  out, 
And  sack  great  Rome  with  Romans."2 

Menelaus  advised  and  counsels  temperate  and  lawful 
means  only  to  punish  the  accused  one.  Admonishes 
against  the  danger  of  the  mob  and  the  overthrow  of  law 
and  suggests  that  when  the  law  is  trampled  under  foot 
in  the  one  instance,  it  is  likely  to  spread  and  bring  a 

Coriolanus,  Act  III,  Scene  I. 
2  Coriolanus,  Act  III,  Scene  I. 


CORIOLANUS.  411 

widespread  reign  of  lawlessness  upon  Rome.  "Proceed  by 
process."  This  is  lawyer-like  advice,  to  enjoy  only  the 
rights  which  the  law  guarantees,  through  the  remedial 
procedure  of  the  courts,  which  crystallized  into  funda- 
mental or  organic  law,  in  this  country,  by  our  provision 
that  no  one  should  be  denied  his  rights,  except  upon  "due 
process  of  law."1 

"Process"  is  a  word  used  to  convey  the  means  of  com- 
pelling a  defendant  to  appear  in  court,  after  suing  out 
the  original  writ,  in  a  civil  suit,  or  after  indictment  found, 
in  a  criminal  case.2  Coriolanus'  friend  advises  against 
his  arrest  without  process,  but  counsels  proceeding  in  a 
lawful,  orderly  manner  only. 

Sec.  397.    Death  by  the  wheel. — 

"Cor.     Let  them  pull  all  about  mine  ears;  present  me 
Death  on  the  wheel,  or  at  the  wild  horses  heels; 
Or  pile  ten  hills  on  the  Tarpeian  rock, 
That  the  precipitation  might  down  stretch 
Below  the  beam  of  sight,  yet  will  I  still 
Be  thus  to  them."3 


1  See  14th  Amendment  to  U.  S.  Con. 

2  3  Sh.  Bl.  Comm.  279. 

Cleopatra  asks  Antony: 
"Cleo.    Is  come  from  Caesar;  therefore,  hear  it,  Antony. — 
Where's  Fulvia's  process?  Caesar's,  I  would  say." 

(Act  I,  Scene  I.) 

Doctor  Rolfe  gives  the  definition  of  process,  presented  by  Malone 
and  taken  from  the  Dictionary  of  Minsheu  (1617)  as  follows: 
"The  writings  of  our  common  lawyers  sometimes  call  that  the 
process  by  which  a  man  is  called  into  court  and  no  more."  (Rolfe's 
Antony  and  Cleopatra,  p.  213,  notes.) 

The  King,  in  Hamlet,  after  dispatching  Rosencrantz  and  Gilden- 
stern,  remarks:  "After  the  Danish  sword  and  thy  free  awe, 
Pays  homage  to  us,  thou  may'st  not  coldly  set,  Our  sovereign 
process."     (Act  IV,  Scene  III.) 

3  Coriolanus,  Act  III,  Scene  II. 


412  THE  LAW  IN  SHAKESPEARE. 

This  is  a  defiance,  on  Coriolanus'  part,  of  the  attempted 
power  of  the  plebeians  and  a  challenge  that  he  will  not 
abide  it,  regardless  of  the  consequences  to  himself.  Such 
a  speech  is  in  strict  accord  with  the  stern  bravery  and 
uncompromising  dignity  of  this  proud  patrician,  viewed 
in  the  light  of  the  struggle  between  the  patricians  and 
plebeians  at  this  period.1  Punishment  by  the  "wheel" 
was  inflicted  upon  a  criminal  who  was  placed  on  a  revolv- 
ing wheel  and  his  bones  were  then  broken,  until  he  ex- 
pired.2 It  was  in  vogue  in  ancient  Rome  and  Coriolanus, 
as.  here  quoted,  was  willing  to  suffer  this  torture  rather 
than  surrender  his  principles. 


Sec.  398.    Trial  by  Comitia.— 

"Sic.     Draw  near,  ye  people. 

Aedi.     List  to  your  tribunes;  audience:  Peace,  I  say. 

Cor.     First,  hear  me  speak. 

Both  Tri.     Well,  say. — Peace,  ho. 

Cor.     Shall  I  be  charg'd  no  further  than  this  present? 

Must  all  determine  here? 
Sic.     I  do  demand, 

If  you  submit  you  to  the  people's  voices, 

Allow  their  officers  and  are  content 

To  suffer  lawful  censure  for  such  faults 

As  shall  be  prov'd  upon  you? 
Cor.     I  am  content. 


Sic.     Answer  to  us. 
Cor.     Say  then;  'tis  true,  I  ought  so. 
Sic.     We  charge  you,  that  you  have  contrived  to  take 
From  Rome,  all  season'd  office,  and  to  wind 


1  Gibbons'  Rome;  Niebuhr,  Arnold. 

2  Bouvier's  Law  Dictionary. 

Paulina  refers  to  torture  by  the  wheel,  in  Winter's  Tale,  when 
she  asks  Leontes: 

"Paul.    What  studied  torments,  tyrant,  hast  for  me? 
What  wheels?  racks?  fires?  etc."  (Act  III,  Scene  II.) 


CORIOLANUS.  413 

Yourself  into  a  power  tyrannical; 

For  which,  you  are  a  traitor  to  the  people. 


Sic.     Mark  you  this,  people? 

Cit.     To  the  rock  with  him;  to  the  rock  with  him."1 

The  Poet  here  gives  the  real  significance  to  the  semi- 
historical  traditions  obtaining  some  500  years  B.  C.  when 
Caius  Marcus,  surnamed  Coriolanus,  struggled  to  prevent 
the  poor  plebeian  from  being  placed  upon  an  equal  foot- 
ing, in  the  affairs  of  government,  with  the  rich  patrician. 

The  plebeian  soldiers,  after  their  victory  over  the  Vols- 
cians,  had  threatened  to  form  a  rival  city,  unless  their 
right  of  voting  in  such  trials  was  recognized,  and  thus  the 
comitia  tribuna,  a  sort  of  rival  power  in  the  affairs  of 
the  government,  to  the  consulate  of  the  patricians,  was 
recognized.  The  comitia  was  the  regularly  convened 
meeting  of  the  Roman  people,  for  the  purpose  of  voting 
on  some  public  question.  The  different  departments  of 
government,  now  recognized,  were  not  separated  at  this 
period  of  the  world's  history;  it  was  a  fundamental  prin- 
ciple of  Roman  Government  that  the  supreme  power  was 
inherent  in  the  people,  though  it  might  be  delegated  by 
them  to  elected  or  hereditary  magistrates.  All  important 
matters,  however,  had  to  be  brought  before  the  sovereign 
people,  who  could  ratify  or  reject,  the  proposals  made  to 
them,  without  a  discussion.  The  power  of  the  people, 
swayed,  as  they  were  by  improper  appeals  and  motives, 
led,  ultimately,  to  a  period  of  moral  and  political  corrup- 
tion, which  was  followed  by  the  military  despotism  of  the 
Caesars.  And  although  the  first  few  emperors  called  the 
people  together,  in  pursuance  to  this  former  custom  of 
the  republic,  the  meetings  were  only  to  ratify  the  acts 
of  the  emperors,  and  finally  the  power  of  the  comitia, 
which  the  Poet  presents  as  condemning  Coriolanus  to 


1  Coriolanus,  Act  III,  Scene  II. 


414  THE   LAW  IN   SHAKESPEARE. 

banishment,  became  an  institution  known  only  to  the 
traditions  of  the  past  greatness  of  the  eternal  city.1 

1  See  Gibbon,  Niebuhr,  Arnold. 

As  this  trial  by  the  comitia,  is  presented,  Shakespeare  makes 
Coriolanus  defy  the  power  of  the  people,  as  follows:  "Cor.  I'll 
know  no  further:  Let  them  pronounce  the  steep  Tarpeian  death, 
vagabond  exile,  flaying,"  etc.,  and  to  this  defiance,  Sicinius,  ap- 
peals to  the  people:  "Sic.  ...  In  the  name  o'  the  people,  And 
in  the  power  of  us  the  tribunes,  we,  even  from  this  instant,  banish 
him  our  city;  In  peril  of  precipitation  from  off  the  rock  Tarpeian, 
never  more  to  enter  our  Roman  gates;  F  the  people's  name,  I  say, 
it  shall  be  so."  And  the  people  ratify  this  judgment,  as  follows: 
"Cit.  It  shall  be  so;  it  shall  be  so;  let  him  away;  he's  banish'd, 
and  so  it  shall  be."     (Coriolanus,  Act  III,  Scene  III.) 


CHAPTER  XXIX. 
"JULIUS  OESAR." 

Sec.  399.  English  statutes  of  "Laborers  and  Mechanics." 

400.  Idealism  the  basis  of  Brutus'  crime. 

401.  Cassius  the  typical  criminal  revolutionist. 

402.  Cassius'  suggestion  of  the  crime. 

403.  Brutus'  struggle  with  his  conscience. 

404.  The  people's  cause,  the  motive  for  Brutus'  murder. 

405.  "The  Law  of  children." 

406.  "The  King  can  do  no  wrong." 

407.  Caesar's  will. 

408.  The  effect  of  error. 

409.  Antony's  tribute  to  Brutus'  character. 

Sec.  399.    English  statutes  of  laborers  and  mechanics. — 

"Flavins.     Hence!    home,    you   idle    creatures,    get   you 
home. 
Is  this  a  holiday?  What:  know  you  not, 
Being  mechanical,  you  ought  not  walk 
Upon  a  labouring  day  without  the  sign 
Of  your  profession?"1 

The  regulation  of  the  rights  of  laborers,  mechanics  and 
artisans  was  a  frequent  source  of  legislation  in  England, 
at  an  early  day.  During  the  reign  of  Edward  III,  be- 
cause of  the  scarcity  of  mechanics  and  laborers,  they  took 
occasion  to  demand  exorbitant  wages  and  refused  to  work 
unless  they  received  wages  commensurate  with  their  ideas 
of  the  value  of  their  services.  It  became  necessary  to 
reduce  them  to  subordination,  as  the  nobility  supposed, 
so  various  statutes  were  enacted  with  this  end  in  view. 

By  statute,  23  Edw.  Ill,  c.  2,  every  able-bodied  male  or 
female,  without  land  and  able  to  work,  was  required  to 
work  at  the  wages  customary,  the  six  preceding  years  of  the 
king's  reign ;  they  were  required  to  bring  their  implements 
of  trade  into  town  and  there  be  hired  at  a  common,  public 


1  Julius  Caesar,  Act  I.  Scene  I. 

(415) 


416  THE  LAW  IN  SHAKESPEARE. 

place;  any  workman  or  artisan  failing  to  comply  with 
the  act,  was  to  be  punished  by  imprisonment,  and  the 
justices  for  the  execution  of  the  act  were  to  hold  sessions 
four  times  a  year,  at  the  Annunciation,  on  St.  Margaret, 
St.  Michael  and  St.  Nicholas's  day;  they  were  required 
to  regulate  the  conduct  of  laborers,  and  artisans  and 
laborers,  or  mechanics,  absenting  themselves  before  the 
termination  of  their  contract,  were  to  be  branded  on  the 
forehead  with  a  red  hot  iron,  containing  the  letter  "F," 
to  denote  their  falsity.1  By  statute  during  the  reign  of 
Richard  II,  (12  Richard  II,  c.  6)  it  was  ordained  that 
no  servant,  laborer  nor  artificer  should  carry  a  sword  or 
buckler,  except  in  time  of  war,  or  when  traveling  with 
their  masters,  but  they  were  allowed  bows  and  arrows  and 
such  other  small  trifles,  on  Sundays  and  public  holidays.2 
By  13  Richard  II,  c.  8,  the  justices  at  their  sessions  between 
Easter  and  St.  Michael  were  to  make  proclamation  of  how 
many  and  what  kind  of  victuals  all  masons,  carpenters, 
tilers  and  others  craftsmen  should  take  by  the  day,3  and 
by  7  Henry  IV,  c.  17,  it  was  provided  that,  whereas,  "for 
the  pride  of  clothing  and  other  evil  customs  that  servants 
do  use  in  the  same,"  the  crafts  in  cities  and  buroughs 
had  become  depleted  and  laborers  of  this  class  most  scarce, 
the  act  proceeded  to  remedy  this  evil,  resulting  from  "the 
pride  of  clothing,"  etc.4  It  was  no  doubt  to  some  of 
these  English  acts  that  the  Poet  refers  in  the  above  lines, 
for  he  always  gave  the  foreign  countries  of  which  he  wrote, 
the  laws  and  manners  and  customs  of  England. 

Sec.  400.    Idealism  the  basis  of  Brutus'  crime. — 

"Bru.     .     .     .     But  wherefore  do  you  hold  me  here  so 
long? 
What  is  it  that  you  would  impart  to  me? 


1  III  Reeve's  History  Eng.  Law,  pp.  132,  133. 

2  III  Reeve's  History  Eng.  Law,  366,  367. 

3  Ante  idem. 

♦Ill  Reeve's  History  Eng.  Law,  pp.  413,  414. 


JULIUS  CAESAR.  417 

If  it  be  aught  toward  the  general  good, 
Set  honour  in  one  eye,  and  death  i'  the  other, 
And  I  will  look  on  both  indifferently: 
For,  let  the  gods  so  speed  me,  as  I  love 
-    The  name  of  honour  more  than  I  fear  death."1 

In  analyzing  the  motives  which  led  Brutus  to  murder 
his  friend,  the  expert  criminologist,  August  Goll,  observes : 
"This  is  precisely  the  nature  of  the  pronounced  theorist. 
His  train  of  ideas  amounts  almost  to  a  rubric.  He  cannot 
concur  in  anything,  unless  it  is  founded  on  a  theory,  a 
principle,  a  syllogism.  .  .  .  From  the  moment  the 
voice  of  his  feelings  seems  to  him  to  be  prompted  by  his 
reason,  his  freedom  of  action  is  practically  at  an  end. 
Without  this  theory  he  can  do  nothing,  with  it  he  can 
do  all.  Once  formed,  he  must  follow  it  and  take  the 
consequences  of  it.  It  becomes  the  highest  moral  duty 
to  himself.  No  consideration  of  wife,  friends,  his  own 
welfare,  can  shake  him  a  hair's  breadth  from  the  respon- 
sibility, the  duty,  which  his  theory  lays  upon  him,  which 
appears  to  have  become  one,  with  his  innermost  ethical 
self.  If  the  theory  lead  him  to  outrage  all  human  feel- 
ings, so  much  the  more  it  is  his  duty  to  follow  it  and 
to  conquer  sentiment.  That  is  what  his  honour  demands ; 
and — 'I  love  the  name  of  honour  more  than  I  fear  death.' 

On  no  account  must  one  think  that  Brutus's  feeling  of 
gratitude  and  friendship  for  Caesar  must  have  been  false 
and  insincere,  or  that  they  were  not  deep,  because  he  can 
find  it  in  his  heart  to  kill  him.  .  .  .  The  greater  we 
picture  to  ourselves  Brutus's  love  of  and  gratitude  to 
Caesar,  the  greater  he  himself  is,  because  his  altruism  has 
had  the  more  to  conquer,  and  the  nearer  he  attains  to  the 
absolutely  heroic."2 


1  Julius  Caesar,  Act  I,  Scene  II. 

'Goll's   Criminal   Types  in   Shakespeare,   pp.   54,   55,   57. 

Goll  points  out  that  Brutus  will  not  even  desert  his  ideals,  after 
the  misfortunes  of  his  private  life  and  the  strokes  of  adversity 
have  blasted  all  his  hopes,  for  "in  purity  of  thought  he  is  the 


418  THE  LaW  IN  SHAKESPEARE. 

Sec.  401.    Cassius  the  typical  criminal  revolutionist. — 

"Cas.     ...     I  cannot  tell  what  you  and  other  men 
Think  of  this  life;  but,  for  my  single  self, 
I  had  as  lief  not  be,  as  live  to  be 
In  awe  of  such  a  thing  as  I  myself. 
I  was  born  free  as  Caesar;  so  were  you: 
We  both  have  fed  as  well;  and  we  can  both 
Endure  the  winter's  cold  as  well  as  he."1 

This  portrayal  of  Cassius,  shows  the  envy  and  hatred 
of  the  typical  criminal  revolutionist,  who  cannot  brook 
the  sight  of  one  grown  greater  than  himself.  Considering 
the  criminal  character  of  this  conspirator,  as  presented  by 
the  Poet,  Goll  said:     "Cassius,  with  his  mixture  of  polit- 

same:  he  carries  the  banner  of  the  ideal  as  high  as  ever.  He 
belongs  to  those  whom  adversity  does  not  make  smaller,  nor 
experience  more  clever.  He  has  learned  nothing  from  his  earlier 
errors,  because  they  were  the  outcome  of  his  innermost  nature, 
not  of  insumcint  knowledge."  (Goll's  Criminal  Types  in  Shake- 
speare, p.  70.) 

Illustrating  the  high  ideals  of  Brutus,  where  the  public  inter- 
est was  in  issue,  Plutarch  describes  how  he  had  taken  sides  with 
Pompey,  as  against  Caesar,  although  his  father  had  been  put  to 
death  by  Pompey.  He  said:  "Thinking  it  his  duty  to  prefer  the 
interest  of  the  public  to  his  own  private  feelings,  and  judging 
Pompey's  to  be  the  better  cause,  he  took  part  with  him;  though 
formerly  he  used  not  so  much  as  to  salute  or  take  any  notice  of 
Pompey,  if  he  happened  to  meet  him,  esteeming  it  a  pollution  to 
have  the  least  conversation  with  the  murderer  of  his  father." 
(Plutarch's  Life  of  Marcus  Brutus.) 

And  referring  to  the  object  of  the  conspirators  in  urging  Brutus 
to  take  part  with  them,  Plutarch  said:  "Their  opinion  was  that 
the  enterprise  wanted  not  hands  or  resolution,  but  the  reputation 
and  authority  of  a  man  such  as  he  was,  to  give,  as  it  were,  the 
first  religious  sanction,  and  by  his  presence,  if  by  nothing  else,  to 
justify  the  undertaking;  that  without  him  they  should  go  about 
this  action  with  less  heart  and  should  lie  under  great  suspicions 
when  they  had  done  it,  for,  if  their  cause  had  been  just  and 
honorable,  people  would  be  sure  that  Brutus  would  not  have  re- 
fused it."     (Plutarch's  Life  of  Marcus  Brutus.) 

Julius  Caesar,  Act  I,  Scene  II. 


JULIUS  CESAR.  419 

ical  and  personal  hatred,  with  his  power  to  let  the  one 
strengthen  the  other,  is  the  type  of  one  of  the  groups  of 
which  the  adherents  of  revolution  consists,  the  great  haters, 
those  who,  as  Auguste  Comte  says,  about  the  followers  of 
the  great  French  Revolution,  are  perpetually  in  a  condi- 
tion of  'chronic  rage'  which  enables  them,  whenever  they 
consider  the  right  moment  has  come,  to  perform  the  most 
horrible  actions — the  men  of  whom  the  anarchists  of  the 
present  time,  are  the  lineal  descendants.  Cassius  possesses 
the  energy  proper  to  this  hatred,  to  gather,  lead,  and  agi- 
tate, to  compel  the  others  to  follow.  Always  active,  recon- 
noitering,  intriguing,  enlisting  followers,  considering 
chances,  quick  of  mind  and  subtle  of  reason,  he  disports 
himself  like  a  fish  in  water  at  nightly  conferences,  at 
solemn  meetings;  caring  nothing  about  thunderstorms 
and  warnings,  never  losing  sight  of  his  aim,  always 
working  to  gain  ground,  always  discerning  where  some- 
thing may  be  won,  what  is  worth  troubling  about,  where 
the  chances  lie."1 

Sec.  402.     Cassius'  suggestion  of  the  crime. — 

"Cas.     Why  man,  he  doth  bestride  the  narrow  world, 
Like  a  Colossus;  and  we  petty  men 
Walk  under  his  huge  legs,  and  peep  about 
To  find  ourselves  dishonourable  graves. 
Men  at  some  time  are  masters  of  their  fates: 
The  fault,  dear  Brutus,  is  not  in  our  stars, 
But  in  ourselves,  that  we  are  underlings. 

There  was  a  Brutus  once,  that  would  have  brook'd 
The  eternal  devil  to  keep  his  state  in  Rome, 
As  easily  as  a  king. 


1  Goll's  Criminal  Type  sin  Shakespeare,  pp.  48,  44. 

And  it  is  this  very  characteristic,  noted  by  this  criminologist, 
that  the  Poet  makes  Caesar  also  note,  when  he  said  to  Antony: 
"Yond  Cassius  has  a  lean  and  hungry  look;  He  thinks  too  much: 
such  men  are  dangerous."  And  history  affords  evidence  that 
this  remark  was  really  made  of  this  criminal  revolutionist  by  the 
discerning  Caesar.     (Plutarch's  Life  of  Marcus  Brutus.) 


420  THE  LAW  IN  SHAKESPEARE. 

Bru.     That  you  do  love  me,  I  am  nothing  jealous; 
What  you  would  work  me  to,  I  have  some  aim; 
How  I  have  thought  of  this,  and  of  these  times, 
I  shall  recount  hereafter;  for  this  present, 
I  would  not,  so  with  love  I  might  entreat  you, 
Be  any  further  mov'd.     What  you  have  said, 
I  will  consider;  what  you  have  to  say, 
I  will  with  patience  hear:  and  find  a  time 
Both  meet  to  hear,  and  answer,  such  high  things."1 

Cassius'  appeal  to  Brutus,  as  the  descendant  of  Lucius 
Junius  Brutus,  who  it  is  suggested,  would  never  have 
brook'd  a  king  in  Rome,  is  presented  as  the  suggestion 
that  puts  the  mind  of  Brutus  in  a  proper  frame  to  after- 
ward accept  the  crime  as  the  only  logical  remedy  for  the 
evils  that  he  must  free  the  people  from.  Cassius  knew 
that  Brutus  would  be  moved  alone  by  his  sense  of  duty 
to  the  people,  hence  he  presents  the  duty,  which  he  must 
not  shirk.  Brutus  is  already  troubled  as  to  how  he  ought 
to  act,  under  all  the  circumstances  and  Cassius  suggests 
that  he  ought  to  act  in  this  way,  i.  e.,  he  ought  to  rid 
the  people  of  this  ambitious  man.  It  is  as  if  a  light 
plainly  led  him  now,  in  this  direction  and  this  sugges- 
tion furnishes  the  inducement  that  was  needed  to  resolve 
his  indecision.  Cassius'  words  have  had  the  desired  effect 
for 

"Brutus  had  rather  be  a  villager 
Than  to  repute  himself  a  son  of  Rome 
Under  these  hard  conditions  as  this  time 
Is  like  to  lay  upon  us." 

But  Brutus  is  not  a  man  of  impulse  or  sentiment  and 
will  not  be  driven  to  the  commission  of  the  crime  by  the 
mere  force  of  suggestion  from  another.  He  will  weigh 
the  evidence  and  himself  determine  upon  the  proper  course 
to  pursue,  with  regard  solely  to  his  fixed  duty  to  the  pub- 
lic. He  would  not,  at  present,  "be  any  further  mov'd," 
but  he  "will  consider"  all  that  Cassius  has  had  to  say. 

1  Julius  Caesar,  Act  I,  Scene  II. 


JULIUS  C.ESAR.  421 

He  will  not  consent  to  the  commission  of  the  crime,  until 
he  has  had  ample  time  for  reflection  and  to  harmonize 
the  deed  with  his  sense  of  duty  and  his  high  ideals.  But 
of  course  the  seed  is  sown  and  the  suggestions  made  by 
Cassius  will  bring  his  reason  into  line  with  the  sugges- 
tions of  the  criminal  revolutionist. 

Sec.  403.    Brutus*  struggle  with  his  conscience. — 

"Bru.     Since  Cassius  first  did  whet  me  against  Caesar, 
I  have  not  slept. 

Between  the  acting  of  a  dreadful  thing 
And  the  first  motion,  all  the  interim  is 
Like  a  phantasma,  or  a  hideous  dream: 
The  genius,  and  the  mortal  instruments, 
Are  then  in  council;  and  the  state  of  man, 
Like  to  a  little  kingdom,  suffers  then 
The  nature  of  an  insurrection."1 

True  to  the  character  of  this  high-minded  theorist, 
Shakespeare  makes  of  Brutus  the  man  of  conscience,  who 
must  first  reason  the  thing  out  for  himself  and  become 
convinced  that  right  is  on  his  side,  before  he  can  com- 
mit himself  to  the  commission  of  the  deed.  He  was  no 
man  of  impulse,  with  a  personal  hatred  or  grievance  to 
gratify  in  this  murder,  who  surrendered  himself,  on  the 
first  suggestion  of  the  deed;  but  he  had  to  first  bring  his 
reason  and  his  proper  idea  of  the  deed  to  correspond  with 
his  theories  before  he  would  consent  to  proceed  in  the  en- 
terprise. He  had  to  overcome  not  only  his  own  con- 
scientious scruples  against  such  a  deed,  but  also  his  per- 
sonal friendship  and  love  for  Csesar  and  his  horror  for  such 
a  cowardly  deed,  for  Brutus  was  a  man  of  brave  deeds. 
Opposed  to  these  motives,  which  impelled  him  in  the 
opposite  direction,  he  had  to  consider  the  interests  of  the 
people  and  the  danger  resulting  to  their  cause,  from  the 
crowning  of  a  king  in  Rome.  With  these  conflicting  im- 
pulses and  the  struggle  with  his  conscience,  Brutus  had 


1  Julius  Csesar,  Act  II,  Scene  I. 


422  THE  LAW  IN  SHAKESPEARE. 

not  slept,  "since  Cassius  first  did  whet"  him  against  Caesar; 
ever  since  the  suggestion  of  the  crime  he  had  been  like  a 
visionary,  or  one  experiencing  "a  hideous  dream."  And 
"like  to  a  little  kingdom,"  he  had  suffered  "the  nature  of 
an  insurrection." 

Sec.   404.     The  people's   cause  the  motive   for  Brutus' 
murder. — 

"Bru.     No,  not  an  oath :  If  not  the  face  of  men 

The  sufferance  of  our  souls,  the  time's  abuse, — 
If  these  be  motives  weak,  break  off  betimes, 


Plutarch  mentions  the  high  ideals  of  Brutus  for  law  and  his 
duty,  as  he  saw  it,  by  pointing  out  that  on  one  occasion,  when 
he  was  Praetor,  and  had  patiently  and  laboriously  heard  the  evi- 
dence and  given  judgment  in  a  cause  and  the  party  against  whom 
his  decision  was  rendered,  raised  a  great  clamor  and  appealed  to 
Caesar,  Brutus  calmly  replied  that  "Caesar  does  not  hinder  me, 
nor  will  he  hinder  me,  from  doing  according  to  the  laws."  (Plut- 
arch's Life  of  Marcus  Brutus.) 

It  was  no  doubt  this  stern  adherence  to  duty  and  law,  as  he 
saw  it,  that  led  this  upright  citizen  into  the  commission  of  the 
murder  of  his  friend  and  protector,  the  great  Caesar. 

Judged  by  strictly  legal  standards,  of  course  the  offense  is  none 
the  less  murder,  because  the  life  of  a  human  being  was  taken  in 
an  illegal  manner,  by  an  upright  citizen,  or  one  possessed  of  the 
best  motives.  Every  illegal  killing  of  a  human  being,  is  murder 
or  manslaughter,  according  to  the  circumstances  of  the  killing 
and  this  violation  of  the  law,  by  taking  the  life  of  a  human  being, 
on  grounds  of  public  policy,  could  not  be  the  subject  of  explana- 
tion, as  a  lawful  defense  of  the  killing,  but  it  could  only  be  held 
murder  to  take  the  life  of  a  human  being,  in  an  unlawful  man- 
ner, or  otherwise  the  lives  of  persons  would  have  little  or  no 
protection  by  the  law,  but  the  better  the  citizenship  or  motives 
of  the  wrongdoer,  the  less  chance  there  would  be  to  secure  con- 
victions for  such  crimes.  Brutus  was  therefore,  in  the  legal  view,  a 
murderer,  because  he  conspired  to  take  the  life  of  a  human 
being,  in  an  illegal  manner,  but  nevertheless,  in  studying  the 
character  of  the  man,  and  analyzing  his  motives,  it  is  proper 
to  compare  him  with  the  other  criminals  who  entered  into  the 
conspiracy  for  less  noble  motives  than  those  which  prompted  him 
to  act. 


JULIUS  CAESAR.  423 

And  every  man  hence  to  his  idle  bed; 

So  let  high-sighted  tyranny  range  on, 

Till  each  man  drop  by  lottery.    But  if  these, 

As  I  am  sure  they  do,  bear  fire  enough 

To  kindle  cowards,  and  to  steel  with  valour 

The  melting  spirits  of  women;  then,  countrymen, 

What  need  we  any  spur,  but  our  own  cause, 

To  prick  us  to  redress?  what  other  bond, 

Than  secret  Romans,  that  have  spoke  the  word, 

And  will  not  palter?  and  what  other  oath, 

Than  honesty  to  honesty  engag'd, 

That  this  shall  be,  or  we  will  fall  for  it? 

Swear  priests,  and  cowards,  and  men  cautelous, 

Old  feeble  carrions,  and  such  suffering  souls 

That  welcome  wrongs;  unto  bad  causes  swear 

Such  creatures  as  men  doubt:  but  do  not  stain 

The  even  virtue  of  our  enterprise, 

Nor  the  insuppressive  mettle  of  our  spirits, 

To  think,  that,  or  our  cause,  or  our  performance, 

Did  need  an  oath."1 

Brutus  is  here  presented  as  a  criminal  or  conspirator 
who  will  not  act  upon  either  sentiment  or  impulse,  but  is 
swayed  to  the  commission  of  his  crime  by  the  highest 
sense  of  his  duty  to  further  the  cause  of  the  people  of 
Rome.  Dante  wrongfully  assigns  to  Brutus  a  place  in 
hell  alongside  the  traitor  Judas.  As  he  himself  explained 
to  the  people  of  Rome  it  was  "not  that  I  loved  Caesar  less, 
but  that  I  loved  Rome  more."  He  sacrificed  his  love  for 
Caesar  for  the  sake  of  the  people's  cause,  as  he  viewed  it 
and  it  was  not  that  his  love  for  Caesar  was  small,  in  pro- 
portion to  the  sense  of  his  duty,  toward  the  people,  but 
that  this  all  impelling  sense  of  duty  was  so  great  as  to 
overcome  his  own  personal  regard  for  Caesar.  Of  course, 
from  a  strictly  legal  standpoint,  it  does  not  mitigate  the 
crime,  that  the  criminal  was  prompted  to  commit  the 
offense  by  the  strictest  sense  of  duty,2  but  in  analyzing  the 

Julius  Caesar,  Act  II,  Scene  I. 

2  In  the  trial  of  the  fanatic  Guiteau,  for  the  murder  of  President 
Garfield,  the  defense  was  urged  that  the  murderer  was  impelled 
to  commit  the  crime  while  acting  under  the  hallucination  of  a 


424  THE   LAW  IN   SHAKESPEARE. 

motives  of  the  criminal,  the  same  degree  of  moral  tftrpiv 
tude  cannot  attach  to  one  who  acts  from  a  high  sense  of 
duty,  rather  than  the  base  motives  that  usually  prompt 
such  crimes.  Contrasted  with  the  envy  and  personal  hatred 
which  prompted  Cassius  to  murder  Caesar,  the  altruistic 
feelings  and  motives  that  led  Brutus  to  subordinate  his 
personal  interests  and  love  for  Caesar  to  his  high  public 
duty,  makes  the  ethical  mastery  that  he  gained  over  him- 
self the  more  complete. 

The  moving  force  that  impelled  him  to  the  commission 
of  the  crime  was  that  "high-sighted  tyranny"  should  not 
"range  on."  With  this  high  sense  of  his  personal  duty, 
he  did  not  regard  the  enterprise  as  a  "bad  cause"  and 
so  entreated  his  accomplices  not  to  "stain  the  even  virtue" 
of  the  enterprise,  "nor  the  insuppressive  mettle"  of  their 
spirits  by  an  ignoble  oath. 


Divine  command,  but  it  was  held  to  be  incompetent  to  thus  over- 
come the  guilty  intent  to  commit  the  crime  of  murder  and  that 
such  a  defense  was  unavailing. 

In  refusing  the  suggestion  that  Antony  should  also  be  killed, 
Brutus  tells  Cassius: 
"Bru.    Let  us  be  sacrificers,  but  no  butchers,  Caius. 

We  all  stand  up  against  the  spirit  of  Caesar; 

And  in  the  spirit  of  men  there  is  no  blood: 

0,  that  we  then  could  come  by  Caesar's  spirit, 

And  not  dismember  Caesar:   But,  alas, 

Caesar  must  bleed  for  it,  And,  gentle  friends, 

Lets  kill  him  boldly,  but  not  wrathfully; 

Let's  carve  him  as  a  dish  fit  for  the  gods, 

Not  hew  him  as  a  carcase  fit  for  hounds."     (Act  II,  Scene  I.) 

In  his  address  to  the  Romans,  after  the  murder  of  Caesar,  Brutus 
avowed  his  love  for  Caesar,  in  the  following  words:  "Bru.  If 
there  be  any  in  this  assembly,  any  dear  friend  of  Caesar's,  to  him 
I  say,  that  Brutus'  love  to  Caesar  was  no  less  than  his.  If  then 
that  friend  demand,  why  Brutus  rose  against  Caesar,  this  is  my 
answer, — Not  that  I  loved  Caesar  less,  but  that  I  loved  Rome  more. 
Had  you  rather  Caesar  were  living,  and  die  all  slaves;  than  that 
Caesar  were  dead,  to  live  all  free  men?  As  Caesar  loved  me,  I  weep 
for  him;  as  he  was  fortunate,  I  rejoice  at  it;  as  he  was  valiant,  I 


JULIUS  CAESAR.  425 

Sec.  405.     "The  law  of  children."— 

"Caesar.     I  must  prevent  thee,  Cimber, 

These  couchings  and  these  lowly  courtesies 
Might  fire  the  blood  of  ordinary  men, 
And  turn  pre-ordinance  and  first  decree 
Into  the  law  of  children."1 

The  Poet  intends  to  make  great  Caesar  "stand  for  law" 
and  not  for  the  fickle,  vacilating  law  of  children,  which 
would  be  shaped  and  formed  by  the  emotions  and  childish 
fancies,  but  the  fixed,  steady  law  of  strong  men.  Caesar 
was  like  the  "northern  star"  in  his  fixedness  and  true 
"resting  quality,"  while  his  lesser  fellows  did  not  possess 
these  elements  of  greatness.  In  other  words,  he  had  pro- 
nounced judgment  in  the  case  of  Cimber's  brother  and 
unless  he  could  be  shown  that  this  judgment  was  wrong, 
he  could  not  be  influenced  by  his  emotions  or  the  appeals 
of  the  influential,  to  set  aside  his  former  judgment,  for 
this  would  make  the  law  of  Caesar  a  thing  of  ridicule, 
and  reduce  his  fixed,  constant  decrees  to  the  plane  of 
childish  law.2 


honour  him:  but,  as  he  was  ambitious,  I  slew  him."     (Act  III, 
Scene  II.) 

Illustrating  the  high  regard  of  the  ancient  Romans  for  law  and 
order,  Plutarch  shows  how  Augustus  Caesar,  on  his  accession,  to 
the  consulship,  "immediately  ordered  a  judicial  process  to  be 
issued  out  against  Brutus  and  his  accomplices,  for  having  mur- 
dered a  principal  man  of  the  city,  holding  the  highest  magis- 
tracies of  Rome,  without  being  heard  or  condemned;  and  he  ap- 
pointed Lucius  Cornificus  to  accuse  Brutus  and  Marcus  Agrippa 
to  accuse  Cassius.  None  appearing  to  the  accusation,  the  judges 
were  forced  to  pass  sentence  and  condemn  them  both.  It  Is  re- 
ported, that  when  the  crier  from  the  tribunal,  as  the  custom  was, 
with  a  loud  voice  cried  Brutus  to  appear,  the  people  groaned 
audibly,  and  the  noble  citizens  hung  down  their  heads  for  grief." 
(Plutarch's  Life  of  Marcus  Brutus.) 

1  Julius  Caesar,  Act  III,  Scene  I. 

*  It  is  barely  possible  that  the  Poet,  in  these  lines,  wherein  he 
refers  to  the  "law  of  children,"  meant  the  old  law  of  England  by 
which  the  lord  of  the  manor  was  given  the  right  to  exact  a  fine 


426  THE  LAW  IN  SHAKESPEARE. 

Sec.  406.    "The  king  can  do  no  wrong.' ' — 

"Csesar.     Know  Caesar  doth  not  wrong,  nor  without  cause 
Will  he  be  satisfied."1 

The  Poet  in  these  lines  puts  into  the  mouth  of  Caesar 
the  common  law  of  England,  by  which  it  was  held  that 
the  "king  could  do  no  wrong."  It  was  a  necessary  and 
fundamental  principle  of  the  English  Constitution  that 
the  king  "could  do  no  wrong."  Whatever  was  amiss  in 
the  conduct  of  public  affairs  could  not  be  charged  per- 
sonally to  the  king;  his  ministers  alone  were  accountable 
for  wrongs  done  to  the  people;  the  prerogative  of  the 
crown  extended  to  doing  only  good,  for  as  the  king  reigned 
for  the  benefit  of  the  people  it  was  not  possible  for  him 
to  do  wrong.2  The  law  supposed  an  entire  absence  of 
capacity  to  do  wrong,  because  of  the  excellency  of  the 
king's  person  and  the  perfection  of  his  virtues;  he  was 
presumed  incapable  of  committing  folly,  much  less  of 
committing  crimes,  hence  was  not  under  the  coercive 
power  of  the  law,  whose  province  was  the  redress  of 
wrongs.3  Caesar  occupied  the  analogous  position  of  king, 
or  Imperator  of  the  Romans,  hence  Shakespeare  endows 
him  with  the  attributes  of  royalty,  enjoyed  by  English 
kings,  before  the  law. 

Sec.  407.    Caesar's  will.— 

"Ant.     ...  \     .     But  here's  a  parchment,  with  the  seal  of 
Caesar, 
I  found  it  in  his  closet,  'tis  his  will : 
Let  but  the  commons  hear  this  testament, 
(Which,  pardon  me,  I  do  not  mean  to  read,) 
And  they  would  go  and  kiss  dead  Caesar's  wounds, 


for  every  child  begotten  by  his  bond-women,  without  his  own  con- 
sent. Every  reputed  father  of  a  bastard  was  required  to  pay 
a  small  fine  to  the  Lord  and  for  this  trivial  offering  the  law  was 
overlooked,  on  the  part  of  the  lord  of  the  manor.     (Cowel.) 

1  Julius  Caesar,  Act  III.  Scene  I. 

3  III  Shars.  Bl.  Comm.,  sec.  255,  p.  173;  IV  idem.,  sec  33,  p.  351. 

8 IV  Shars.  Bl.  Comm.,  sec.  33,  pp.  351,  30. 


JULIUS  OffiSAR.  427 

And  dip  their  napkins  in  his  sacred  blood ; 
Yea,  beg  a  hair  of  him  for  memory, 
And,  dying,  mention  it  within  their  wills, 
Bequeathing  it,  as  a  rich  legacy, 
Unto  their  issue. 


Here  is  the  will,  and  under  Caesar's  seal. 

To  every  Roman  citizen  he  gives, 

To  every  several  man,  seventy-five  drachmas. 

Moreover,  he  hath  left  you  all  his  walks, 
His  private  arbours,  and  new-planted  orchards, 
On  this  side  Tyber;  he  hath  left  them  you, 
And  to  your  heirs  forever;  common  pleasures, 
To  walk  abroad,  and  recreate  yourselves."1 

The  Poet  gives  no  undue  prominence  to  the  fact  that 
Caesar's  will  contained  his  seal,  for  both  by  the  common  law 
and  law  of  ancient  Rome,  such  documents  were  required  to 
be  under  seal.  Indeed,  at  any  early  period,  seals  were  given 
much  more  prominence  in  legal  documents,  such  as  wills, 
than  at  the  present  day,  and  all  prominent  individuals  had 
their  impressions  made  on  wax,  or  other  soft  substance, 
with  a  die,  or  matrix,  or  a  gem,  which  was  used  as  their 
private  seals.  Sealed  rings  were  in  use,  in  Egypt,  at  an 
early  day,  by  which  such  documents  were  sealed,  and  a 
variety  of  devices  were  in  use  in  Rome,  both  by  the  earlier 
emperors  and  by  private  individuals.2 

As  history  quotes  the  will  of  Caesar,  he  left  a  substantial 
legacy  to  each  one  of  the  Roman  citizens,  but  the  bulk  of 
his  estate  was  left  to  the  son  of  his  niece,  afterwards  known 
as  Augustus  Caesar.  Antony  acted  as  executor  of  this 
will,  until  young  Caesar  was  unable  to  compel  him  to 
carry  out  the  terms  of  the  will  and  enforce  the  will  of 
the  testator,  then  he  sought  advice  from  Cicero,  to  com- 
pel Antony  to  carry  out  the  terms  of  the  will.3 


1  Julius  Caesar,  Act  III,  Scene  II. 

1  Gibbon's  Rome. 

•  Plutarch's  Life  of  Caesar  and  Plutarch's  Life  of  Antony. 


428  THE  LAW  IN  SHAKESPEARE. 

Sec.  408.    The  effect  of  error. — 

"Mes.     ...     0  hateful  error,  melancholy's  child: 
Why  dost  thou  show  to  the  apt  thoughts  of  men, 
The  things  that  are  not?  0  error,  soon  conceiv'd, 
Thou  never  com'st  unto  a  happy  birth, 
But  kilPst  the  mother  that  engender'd  thee."1 

While  this  verse  is  not  strictly  applicable  to  legal  error, 
any  more  than  to  any  other  kind  of  error,  the  remarks  of 
Messala,  on  discovering  that  Cassius  had  yielded  to  error, 
are  appropriate,  in  commenting  upon  any  error,  whereby 
a  wrong  results.  Lawyers  have  especially  to  deal  with 
the  errors  of  the  courts  and  "alleged  errors/'  when,  in 
fact  none  exist  and  as  the  modern  practice  is  said  to  be,  in 
some  quarters,  but  a  "quest  for  error,"  this  description  of 
the  blighting  effect  of  error,  as  a  child  of  "melancholy," 
ought  to  make  both  courts  and  lawyers  slow  to  fall  into 
error,  or  to  lead  another  into  error. 

Sec.  409.    Antony's  tribute  to  Brutus'  character. — 

"Ant.     This  was  the  noblest  Roman  of  them  all: 
All  the  conspirators,  save  only  he, 
Did  that  they  did,  in  envy  of  great  Caesar; 
He,  only,  in  a  general  honest  thought, 
And  common  good  to  all,  made  one  of  them. 
His  life  was  gentle;  and  the  elements 
So  mix'd  in  him,  that  Nature  might  stand  up, 
And  say  to  all  the  world,  This  was  a  man/'1 

Brutus,  as  August  Goll,  the  criminologist,  shows,  is  but 
a  murderer,  when  judged  both  by  legal  and  worldly  stand- 


Referring  to  the  terms  of  this  will,  Plutarch  said  that  "it  ap- 
pearing by  the  will  that  Caesar  had  bequeathed  to  the  Roman 
people  seventy-five  drachmas  a  man,  and  given  to  the  public  his 
gardens  beyond  Tiber  (where  now  the  temple  of  Fortune  stands), 
the  whole  city  was  fired  with  a  wonderful  affection  for  him,  and 
a  passionate  sense  of  the  loss  of  him."  (Plutarch's  Life  of  Mar- 
cus Brutus.) 

1  Julius  Caesar,  Act  V,  Scene  III. 
'Julius  Caesar,  Act  V,  Scene  V. 


JULIUS  CJESAR.  429 

ards,  for  the  spotlessness  of  his  motives,  or  the  high  ideals 
which  he  sought  to  attain,  cannot  take  away  or  destroy  his 
guilt.  On  the  grounds  of  public  necessity,  crime  cannot 
be  forgiven,  by  any  explanation  of  a  lack  of  criminal  in- 
tent to  commit  an  admitted  criminal  act.  By  this  stand- 
ard, Brutus  is  a  condemned  murderer  and  no  high  aims 
of  the  man  can  palliate  his  crime.  But  the  Poet  has  evi- 
dently not  overlooked  the  man  in  the  deed  and  he  prefers 
to  judge  him,  with  his  deep  sympathy  and  generosity, 
according  to  the  weakness  of  the  race,  by  his  exalted 
objects  and  spotless  intentions.  He  will  not  let  history 
write  the  last  word,  but  puts  words  into  Antony's  mouth 
to  mollify  the  harsh  judgment  of  the  law,  upon  his  deed. 
Antony,  as  Shakespeare  makes  him  speak,  shows  that  this 
man  was  prompted  solely  by  the  general  good  and  by  no 
personal  hostility  or  envy.  He,  alone,  sought  an  ideal; 
he  attempted  to  be  more  than  a  man,  and  to  judge  and 
avenge  the  wrongs  of  the  greatest  of  the  sons  of  men. 
In  this  he  failed,  because  he  was,  at  best,  but  "a  man." 
But  his  purity  of  life,  his  honest  impulses,  his  freedom 
from  criminal  instinct,  can  but  commend  the  character  of 
the  man,  to  even  the  hardest  judges  of  his  crime,  for 
while  admitting  his  guilt,  this  epitaph  of  Antony,  that 
"He  only,  in  a  general  honest  thought  and  common  good 
to  all,  made  one  of  them,"  distinguishes  him  from  the 
guilty  and  envious  conspirators  who  participated  in  this 
interesting  world's  drama.1 

JThis  is  the  conclusion  of  August  Goll.     See  Goll's  Criminal 
Types  in  Shakespeare,  pp.  74,  75,  76,  77. 


CHAPTER  XXX. 

"ANTONY  AND  CLEOPATRA." 

Sec.  410.  Bourn. 

411.  Leaving  property  in  use. 

412.  Title  by  descent  and  purchase,  distinguished. 

413.  Prorogue. 

414.  Malefactor. 

415.  Antony's  suicide — Felo  de  se. 

Sec.  410.    Bourn. — 

"Ant.     There's  beggary  in  the  love  that  can  be  reckon'd. 
Cleo.     I'll  set  a  bourn  how  far  to  be  belov'd. 
Ant.     Then  must  thou  needs  find  out  new  heaven,  new 
earth."1 

Bourn  means  a  boundary  or  limitation.2  Antony  tells 
Cleopatra  that  a  love  without  limit  or  boundary  is  the 
only  kind  of  love  for  him.  She  asserts  that  there  is  a 
limitation  or  natural  boundary  line  to  her  love,  and  he 
replies  that  she  must  necessarily  find  a  proper  limit  to 
heaven  and  earth  to  do  so,  meaning  that  their  love  is  as 
broad  and  limitless  as  the  earth  and  the  heavens. 

Sec.  411.     Leaving  property  in  use. — 

"Antony.     Hear  me,  queen. 

The  strong  necessity  of  time  commands 
Our  services  awhile,  but  my  full  heart 
Remains  in  use  with  you."3 

A  "use,"  by  the  English  law,  was  a  confidence  reposed 
in  another,  who  was  made  tenant  of  the  land,  or  terre 


1  Antony  and  Cleopatra,  Act  I,  Scene  I. 

2  Bouvier's  Law  Dictionary. 

In  his  soliloquy,  Hamlet  speaks  of  the  "undiscover'd  country 
from  whose  bourn  no  traveler  returns."  (Hamlet,  Prince  of  Den- 
mark, Act  III,  Scene  I.) 

•Antony  and  Cleopatra,  Act  I,  Scene  III. 

(430) 


ANTONY  AND   CLEOPATRA.  431 

tenant,  that  he  would  retain  and  use  and  finally  dispose 
of  the  land  according  to  the  intention  of  the  cestui  que  use, 
or  him  to  whose  use  it  was  granted,  and  suffer  him  to 
take  the  profits.1  Uses  were  derived  from  the  fidei  com- 
missa  of  the  Roman  law,  and  it  was  the  duty  of  the 
Roman  magistrate,  the  praetor,  to  enforce  the  observance 
of  this  confidence.2  This  being  the  source  of  the  English 
"use"  it  is  quite  proper  for  the  Poet  to  make  Antony 
use  this  legal  term  in  advising  her  that  he  left  his  heart 
with  her,  in  his  absence. 

Sec.  412.     Title  by  descent  and  purchase  distinguished. — 

"Lep.     .     .     .     His  faults,  in  him,  seem  as  the  spots  of 
heaven, 

More  fiery  by  night's  blackness;  hereditary, 
Rather  than  purchas'd ;  what  he  cannot  change, 
Than  what  he  chooses."3 

This  verse  distinguishes,  clearly,  between  the  title  by 
descent  and  that  by  purchase,  as  it  is  known  at  law. 

In  the  law  of  real  property,  a  title  by  descent,  is  a 
hereditary  title,  descending  to  an  heir  by  operation  of 
law,  with  which  he  has  nothing  to  do  as  the  acquisition 
of  such  title  is  involuntary,  on  h^s  part.4  A  title  by  pur- 
chase is  one  derived  by  bargain  and  sale,  from  the  owner, 
hence,  it  is  one  voluntarily  selected  by  the  buyer  or  pur- 
chaser.5 

Lepidus,  out  of  charity  for  Antony,  refers  to  his  faults 
as  mere  "spots  of  heaven ;"  as  hereditary,  rather  than  pur- 
chased; "what  he  cannot  change,  than  what  he  chooses." 
In  this  last  analysis,  he  distinguishes,  as  any  lawyer  might 
properly  do,  between  things  acquired  by  oneration  of  law, 


'Plowd.  352;  Bacon,  Law  Tr.,  150,  306;  Coke,  Litt.  272b;   2  Bl. 
:^mm.  328. 
*■  Bacon's  Inst.,  2,  23-2;   2  Bl.  Comm.  333;   Bacon,  Law  Tr.  335. 
4  Antony  and  Cleopatra,  Act  I,  Scene  IV. 
♦Tiedeman's  Real  Prop.   (3d  ed.),  Chap.  Title  by  descent. 
'Tiedeman's  Real  Prop.  (3d  ed.),  Chap.  Title  by  Purchase. 


432  THE  LAW  IN  SHAKESPEARE. 

in  which  the  will  of  the  possessor  has  nothing  to  do — and 
the  law  of  nature  is  liken'd  to  the  law  of  man — and  the 
things  voluntarily  taken,  by  one's  own  choosing,  as  a  title 
by  purchase.     It  is  a  lawyer's  excuse  for  one's  natural 


Sec.  413.    Prorogue. — 

"Pom.     .     .     .     Epicurean  cooks, 

Sharpen  with  cloyless  sauce  his  appetite; 
That  sleep  and  feeding  may  prorogue  his  honor, 
Even  till  a  Lethed  dullness."1 

Prorogue  means  to  defer  or  postpone,  as  a  term  of  Par- 
liament is  said  to  be  prorogued,  or  prolonged.  Prorogue 
is  sometimes  used  as  a  synonym  for  adjournment,  when 
a  trial  is  said  to  be  prorogued,  or  a  term  of  court  is  said 
to  be  prorogued,  or  adjourned.2 

Pompey  would  have  the  good  things  enjoyed  by  Antony, 
in  Egypt,  so  dull  his  honor  that  it  would  be  prolonged 
and  put  off,  that  his  joinder  in  the  war  might  be  too  late 
to  avail  his  allies  and  thus  Pompey  would  reap  the  benefit 
of  his  absence. 


Sec.  414.    Malefactor. — 

"Cleo.     I  do  not  like,  but  yet,  it  does  allay 
The  good  precedence;  fie  upon  but  yet; 
But  yet  is  a  gaoler  to  bring  forth 
Some  monstrous  malefactor."3 

Malefactor  is  a  common  legal  term  for  a  wrongdoer, 
or  a  violator  of  the  law,  and  especially  of  the  criminal  law.4 

Cleopatra,  out  of  her  suspicion,  or  intuition,  foresees 
the  dark  object  concealed  by  the  messenger  and  with  a 


1  Antony  and  Cleopatra,  Act  II,  Scene  I. 

2  Tomlin's  Law  Dictionary. 

3  Antony  and  Cleopatra,  Act  II,  Scene  V. 
*  Bouvier's  Law  Dictionary. 


ANTONY  AND   CLEOPATRA.  433 

foreboding  of  the  evil  to  come,  looks  upon  the  words 
used  by  the  messenger  as  the  accompaniment  of  some 
direful  news,  which  the  Poet  compares  to  prisoners,  ush- 
ered in  by  a  jailor. 

Sec.  415.    Antony's  suicide — felo  de  se. — 

"Der.     He  is  dead,  Caesar; 

Not  by  a  public  minister  of  justice, 

Nor  by  a  hired  knife ;  but  that  self  hand, 

Which  writ  his  honor  in  the  acts  it  did, 

Hath,  with  the  courage  which  the  heart  did  lend  it, 

Splitted  the  heart."1 

The  Poet  here  distinguishes  accurately  between  suicide 
or  felo  de  se,  and  death  in  a  legal  manner,  or  by  a  minister 
of  justice. 

It  was  a  crime,  in  England  to  kill  one's  self  and  an 
accessory  to  such  a  crime  was  guilty  of  murder.2  And 
the  crime  did  not  only  extend  to  one  wilfully  killing  him- 
self, but  if  one  intended  to  kill  another  and  killed  himself, 
the  crime  was  the  same,  by  the  English  law.  The  punish- 
ment inflicted  on  a  suicide,  consisted,  formerly  in  an 
ignominious  burial,  in  the  highway  with  a  stake  driven 
through  the  body,  and  without  Christian  rites,  and  the 
goods  and  chattels  of  the  suicide  were  forfeited  to  the 
crown.3 


1  Antony  and  Cleopatra,  Act  V,  Scene  I. 
2 II  Reeve's  History  Eng.  Law,  275. 
3 II  Reeve's  History  Eng.  Law,  275. 

The  English  Act  of  1824  permitted  burial  in  the  churchyard  of 
the  suicide,  without  rites,  between  9  and  12  p.  m.,  but  by  the  Act 
of  1882,  burial  at  any  hour,  with  the  usual  rites,  were  sanctioned. 

As  a  person  committed  felony  in  killing  another,  so,  in  law,  he 
was  held  equally  guilty  in  laying  violent  hands  upon  himself 
and  this  was  called  felonia  de  seipso.  And  Bracton  shows  that  a 
man  who  killed  himself  forfeited  his  movables.    Bract.  150. 


434  THE  LAW  IN  SHAKESPEARE. 

Imogen,  in  speaking  of  self-slaughter,  is  made  to  say,  in  Cym- 
beline: 
"Imo.    Against  self-slaughter 

There  is  a  prohibition  so  divine 

That  cravens  my  weak  hand."  (Act  III,  Scene  IV.) 

In  pronouncing  the  funeral  oration,  at  the  grave  of  Ophelia, 
the  Priest,  in  Hamlet,  refers  to  the  fact  that 
•'Her  death  was  doubtful; 

And,  but  that  great  command  oe'rsways  the  order, 
She  should  in  ground  unsanctified  have  lodg'd, 
Till  the  last  trumpet."  (Act  V,  Scene  I.) 

Touching  suicide,  Hamlet  is  made  to  say: 
"Ham.    O,  that  this  too  too  solid   flesh  would  melt, 
Thaw,  and  resolve  itself  into  a  dew: 
Or,  that  the  Everlasting  had  not  fix'd 
His  canon  'gainst  self-slaughter."  (Act  I,  Scene  II.) 


CHAPTER  XXXI. 

"CYMBELINE." 

Sec.  416.  Election  to  act  in  given  way. 

417.  Advocate. 

418.  Condition  of  wager  contract. 

419.  Lawyer's  duty  to  understand  case. 

420.  Witness  to  action. 

421.  Forfeiters. 

422.  Frankleyn. 

423.  Debtor  overpassing  bound. 

424.  Demesne  lands. 

425.  Guiderius'   defense   of  his   crime. 

426.  Upright  Justicer. 

Sec.  416.    Election  to  act  in  given  way. — 

"1  Gent.     .     .     .     her  own  price 

Proclaims  how  she  esteem'd  him  and  his  virtue; 
By  her  election  may  be  truly  read, 
What  kind  of  man  he  is."1 

Election,  in  the  law,  is  the  choice  between  alternating 
or  inconsistent  rights  or  claims.2  The  right  may  arise, 
either  under  contract  or  independently  of  contract,  as 
where  one  has  the  right,  in  case  of  loss,  either  to  pay  a 
certain  sum,  or  rebuild  the  property  destroyed,  the  deci- 
sion of  which  course  would  be  pursued,  would  be  called 
making  one's  election.  This  right  is  of  especial  impor- 
tance in  equity  practice,  where  constantly  recurring  in- 
stances are  arising  of  the  assertion  of  the  right. 

In  the  sense  in  which  the  term  is  used  here,  it  is  rather 


1  Cymbeline,  Act  I,  Scene  I. 

2  Bouvier's  Law  Dictionary. 

In  this  same  play,  a  Lord  is  made  to  say:     "2  Lord.    If  it  be  a 
sin  to  make  a  true  election,  she  is  damned."     (Act  I,  Scene  III.) 

(435) 


436  THE  LAW  IN  SHAKESPEARE. 

to  indicate  the  choice  or  selection  of  a  particular  person, 
over  another,  than  one  of  two  inconsistent  rights  or 
remedies. 

Sec.  417.    Advocate. 

"Queen.     .     .  For  you,  Posthumus, 

So  soon  as  I  can  win  the  offended  king, 
I  will  be  known  your  advocate."1 

An  advocate  is  generally  defined  as  the  "patron  of  a 
cause,"  and  in  Rome,  those  who  assisted  their  clients  with 
advice  and  pleaded  their  cause  in  the  time  of  the  Republic, 
were  called  by  that  name.2  The  advocate,  in  Rome,  con- 
ducted the  cause  in  public,  and  was  assisted  by  the  pro- 
curator or  attorney,  who  looked  up  the  evidence  and  assist- 
ed the  advocate.3 

The  Queen,  therefore,  rightly  selected  the  broader  term, 
in  promising  to  assist  Posthumus  in  his  suit  for  the  hand 
of  Imogen. 

Sec.  418.    Conditions  of  wager  contract. — 

"lack.  By  the  gods,  it  is  one: — If  I  bring  you  no  suffi- 
cient testimony  that  I  have  enjoyed  the  dearest 
bodily  part  of  your  mistress,  my  ten  thousand  ducats 
are  yours;  so  is  your  diamond,  too.  If  I  come  off 
and  leave  her  in  such  honour  as  you  have  trust  in, 
she  your  jewel,  this  your  jewel,  and  my  gold  are 
yours.     .     .     . 

Post.  I  embrace  these  conditions;  let  us  have  articles 
betwixt  us.     .     .     . 

Iach.  Your  hand ;  a  covenant :  We  will  have  these  things 
set  down  by  lawful  counsel,  and  straight  away  for 
Britain ;  lest  the  bargain  should  catch  cold  and  starve  : 
I  will  fetch  my  gold  and  have  our  two  wagers  re- 
corded. 


1Cymbeline,  Act  I,  Scene  II. 

2  Bouvier's  Law  Dictionary. 

•Ulplan,  Dig.  50,  tit.  13;  Tacitus,  Annal.  X.  6. 


CYMBELINE.  437 

Post.     Agreed. 

French.     Will  this  hold,  think  you?"1 

A  condition  is  a  limitation  or  restriction  placed  in  a 
written  agreement  upon  the  performance  of  which  an 
estate,  interest  or  right  becomes  fixed  or  vested,  but  on 
the  non-performance  of  which  the  estate  determines.2  A 
condition  necessarily  refers  to  a  future  event  or  contin- 
gency, and  not  to  a  present  or  past  event.  Conditions  are 
either  expressed  or  implied,  and  by  the  express  terms  of 
this  contract  of  wager,  the  gold  of  Iachimo  was  to  be 
transferred  to  Posthumus,  if  he  did  not  succeed  in  his 
attempt  upon  the  chastity  of  Imogen,  while  Posthumus' 
ring  was  to  be  his,  if  he  succeeded  in  seducing  her. 
Iachimo,  after  Posthumus  agrees  to  the  conditions  of  the 
wager,  demands  that  covenants  be  entered  into,  for  the 
performance  of  the  contract,  and  suggests  that  these  things 
"should  be  set  down,  by  lawful  counsel,"  "lest  the  bargain 
should  catch  cold  and  starve."  By  this  latter  expression, 
he  means  that  if  the  contract  is  not  reduced  to  writing,  in 
lawful  form,  the  undertaking  would  amount  to  nothing, 
and  in  this  he  was  correct,  as  he  was  in  referring  to  the 
necessity  of  recording  the  wager,  since  the  depositing  of 
such  documents  in  a  public  repository  was  a  custom  re- 
sulting from  the  Saxon  usage  continued  long  after  the 
invasion  of  the  Normans,  whereby  not  only  purchases  of 
land,  but  testaments  and  other  agreements  were  filed  for 
safekeeping.3 

The  doubt,  expressed  by  the  Frenchman,  as  to  the  legal 
effect  of  this  covenant,  in  the  question :  "Will  this  hold, 
think  you?"  is  most  pertinent  to  the  subject  matter  of  the 
agreement,  for,  of  course,  the  undertaking  upon  which  the 
condition  rested,  i.  e.,  the  seduction  of  a  chaste  female, 
is  of  such  an  illegal  nature  as  to  render  the  agreement 


1  Cymbeline,  Act  I,  Scene  V. 

2Bouvier's  Law  Dictionary;  Lawson,  Contracts  (2d  ed.)  238. 

•  I  Reeve's  Hist.  Eng.  Law,  p.  346. 


438  THE   LAW   IN  SHAKESPEARE. 

utterly  void,  in  law.1  The  law,  in  such  cases,  leaves  the 
parties  to  illegal  agreements  where  it  finds  them,  refusing 
to  interfere,  either  to  enforce  or  relieve  against  agreements 
contrary  to  public  policy.2 

Sec.  419.    Lawyer's  duty  to  understand  case. — 

"Clo.     ...     I  will  make 

One  of  her  women  lawyer  to  me;  for 
I  yet  not  understand  the  case  myself."3 

Cloten's  soliloquy,  wherein  he  reflects  that  gold  had 
often  sav'd  the  thief,  whereupon  he  concludes  to  try  its 
effect  upon  the  women  attendants  upon  Imogen,  is  a  fit- 
ting application  of  his  revery  to  himself,  but  in  placing 
them  in  the  category  of  lawyers,  by  inducing  them  to 
betray  their  clients,  he  mistakes  the  primal  duty  of  the 
lawyer.  Loyalty  to  his  client  is  the  first  duty  of  the 
lawyer  and  this  duty  is  rarely  broken  by  lawyers.  It  is 
likewise  the  duty  of  the  lawyer  to  thoroughly  understand 
his  client's  case,  and  in  this  respect  Cloten's  conclusion  is 
proper,  for  while  a  client  may  not,  himself,  understand 
his  cause,  his  lawyer  ought  always  to  know  not  only  the 
facts,  but  the  law  applicable  to  those  facts,  in  his  client's 
favor. 

Sec.  420.    Witness  to  action. — 

"Clo.     You  have  abus'd  me: — 

His  meanest  garment? 
Imogen.     Ay;  I  said  so,  sir, 

If  you  will  mak't  an  action,  call  witness  to't."4 

Cloten  complains  that  he  has  been  abused  and  Imogen, 
instead  of  withdrawing  the  objectionable  speech,  chal- 
lenges him  to  bring  his  action,  if  he  will  and  call  his 
witness. 


1Lawson,  on  Contracts,  (2d  ed.)  Chap.  Illegal  Considerations. 
'Lawson,  Contracts,  (2d  ed.)  supra. 
•  Cymbeline,  Act  II,  Scene  III. 
4  Cymbeline,  Act  II,  Scene  III. 


CYMBELINE.  439 

An  action  is  the  form  of  a  suit,  for  the  recovery,  by 
the  law,  of  that  which  is  one's  due,  or,  in  other  words,  it 
is  the  legal  demand,  according  to  approved  proceedings, 
for  the  enforcement  of  the  right.1  The  successful  main- 
tenance of  an  action,  at  law,  depends  upon  the  proof  of 
the  facts  on  which  it  is  based  and  as  this  can  only  be  done 
by  witnesses,  a  witness  is  one  of  the  main  essentials  to 
every  action  at  law. 

Sec.  421.      Forfeiters. — 

"Imogen.     .     .     .     Lovers 

And  men  in  dangerous  bonds  pray  not  alike; 
Though  forfeiters  you  cast  in  prison,  yet 
You  clasp  young  Cupid's  tables."2 

By  the  Statute  Merchant,  of  England,3  debtors  were 
required  to  enter  into  bond,  before  the  mayor  of  London, 
or  the  chief  warden  of  other  cities  or  towns,  and  the  lands 
of  the  debtor  were  conveyed  to  the  creditor,  until  out  of 
the  rents  and  profits  his  debt  was  paid  and  satisfied.4  If 
the  debtor  forfeited  his  bond,  he  was  liable  to  be  thrown 
in  jail,  until  the  penalty  was  discharged,5  hence  he  would 
pray  to  be  relieved  of  the  bond,  but  the  lover  would  pray 
that  the  bonds  of  love  might  hold  him  forever. 


1  Coke's  Litt.  285. 

In  A  Lover's  Complaint,  the  "fickle  maid"  on  perusal  of  her  let- 
ters, cried: 

"O  false  blood,  thou  register  of  lies, 
What  unapproved  witness  dost  thou  bear: 
Ink  would  have  seem'd  more  black  and  damned  here." 

(52,    54.) 
3Cymbeline,  Act  III,  Scene  II. 
•13  Edw.  I,  c.  1. 

*  2  Bl.  Coram.  160;  Cruise,  Dig.  tit.  14,  sec.  7. 
8  Bacon,  Abr. 

The  lines  just  preceding  those  quoted  above  refer  to  the  formula 
of  sealing  such  bonds  as  were  exacted  of  debtors,  by  creditors,  for 
while  sealing  was  required,  signature  was  not  essential  to  the 
validity  of  such  obligations.     Rolfe's  Cymbeline,  p.  214,  notes. 


440  THE  LAW  IN  SHAKESPEARE. 

Sec.  422.     Frankleyn. — 

"Imogen.     Go  bid  my  woman  feign  a  sickness,  say 

She'll  home  to  her  father;  and  provide  me  presently 
A  riding-suit,  no  costlier  that  would  fit 
A  franklin's  housewife."1 

A  "frankleyn,"  at  English  common  law,  was  a  free- 
man; a  freeholder,  or  what  is  equivalent  to-day,  with  a 
gentleman.2 

Imogen  did  not  want  to  be  dressed  like  a  princess  or 
attired  so  lowly  as  to  cause  adverse  comment,  but  arrayed 
in  a  riding-habit  such  as  would  befit  the  wife  of  a  gentle- 
man, or  land-owner. 

Sec.  423.    Debtor  overpassing  bound. — 

"Gui.     ...     A  prison  for  a  debtor,  that  not  dares, 
To  stride  a  limit,"3 

By  the  English  statute  of  Merchants,  it  was  enacted 
that  a  creditor,  if  his  debt  was  not  paid,  when  due,  might 
bring  the  debtor  before  the  Mayor  of  London,  or  the 
Chief  Warden  of  any  other  town,  in  the  Kingdom,  and 
cause  him  to  make  due  acknowledgment  of  his  debt  and 
if  it  was  not  paid,  when  due,  according  to  this  acknowl- 
edgment, the  creditor  could  have  the  debtor,  on  its  pro- 
duction,  committed  to  the  Tower,  until  the  debt  was  paid.4 
As  to  all  such  prisoners  for  debt,  there  were  certain  boun- 
daries within  which  they  were  required  to  remain,  and  if 
the  debtor  went  beyond  these  boundaries,  it  was  equivalent 
to  an  unlawful  escape  and  he  was  dealt  with  accordingly.5 


Iachimo,  speaking  of  his  false  enjoyment  of  Imogen,  is  made  to 
say:  ".  .  .  .  he  could  not  but  think  her  bond  of  chastity 
quite  crack'd,  I  having  ta'en  the  forfeit."     (Act  V,  Scene  V.) 

sCymbeline,  Act  III,  Scene  III. 
2Bouvier's  Law  Dictionary;  Cowel. 
"Cymbeline,  Act  III,  Scene  III. 
4 II  Bell's  Com.  (Shaw's  Ed.),  p.  1067. 
6  Ante  idem.  3  Bl.  Comm.  290. 


CYMBELINE.  441 

Sec.  424.    Demesne  Lands. — 

"Bel.     .     .     .     this  twenty  years, 

This  rock,  and  these  demesnes,  have  been  my  world."1 

Demesne  originally  signified  that  portion  of  the  lands  of 
a  manor  which  the  lord  reserved  for  his  own  use  and  occu- 
pation. In  this  respect  demesne  lands  differed  from  lands 
granted  or  subfeued  to  the  vassals  for  their  services.  So 
long  as  the  doctrine  of  sub-infeudation  existed,  demesne 
lands  were  held  by  a  distinct  and  separate  right.  But 
by  the  statute  Quia  Emptor es,  (18  Edw.  I)  sub-infeuda- 
tion was  abolished;  the  feofee  was  held  to  take  under  the 
lord  paramount,  and  all  lands  became  demesne.  So  at 
the  present  day,  demesne  lands  may  be  regarded  as  all 
lands  held  by  the  owner  by  virtue  of  his  possession  and 
title  thereto.2 

Sec.  425.     Guiderius'  defense  of  his  crime. — 

"Qui.     ...     The  law 

Protects  not  us:  Then  why  should  we  be  tender, 
To  let  an  arrogant  piece  of  flesh  threat  us; 
Play  judge,  and  executioner,  all  himself; 
For  we  do  fear  the  law?"3 

In  this  verse  the  Poet  makes  the  speaker  defy  the  law, 
because  the  law  had  furnished  no  protection  for  him. 
This  is  the  reasoning  of  the  criminal  in  every  instance, 
and  because  the  hand  of  all  men  is  against  the  outlaw 
he  is,  likewise,  against  all  men  and  the  laws  of  man  and 
refuses  to  take  refuge  under  an  authority  that  will  afford 
him  no  protection. 

This  statutes  of  Merchants  was  enacted  at  Acton  Burnel,  in 
1282.    Bell's  Com.  supra. 
1  Cymbeline,  Act  III,  Scene  III. 

*  Tiedeman's  Real  Property  (3d  ed.),  Chapter  III. 

In  his  reference  to  Rosaline's  bright  eyes,  in  Romeo  and  Juliet, 
Mercutio  speaks  of  her  bodily^  proportions  and  the  "demesnes 
that  there  adjacent  lie."     (Act  II,  Scene  I.) 

*  Cymbeline,  Act  TV,  Scene  II. 


442  THE  LAW  IN  SHAKESPEARE. 

An  equally  able  defense  of  his  act  in  killing  Cloten 
would  have  been  the  fact  that  his  own  life  was  threatened 
by  him  and  he  fought  in  the  defense  of  his  person;  and 
this  would  have  been  a  defense  consistent  with  the  due 
enforcement  and  recognition  of  the  law,  rather  than  in 
defiance  of  the  majesty  of  law. 

Sec.  426.    Upright  Justicer. — 

"Post.     .     .     .     Ay,  me,  most  credulous  fool, 
Egregious  murtherer,  thief,  any  thing 
That's  due  to  all  the  villains  past,  in  being,  < 
To  come : — 0,  give  me  cord,  or  knife,  or  poison, 
Some  upright  justicer."1 

In  old  English  law,  a  Justiciar,  or  Justicier,  was  a 
judge  or  justice,  and  was  one  of  several  persons,  learned 
in  the  law,  who  sat  in  the  aula  regis,  and  formed  a  kind 
of  appellate  court  in  cases  of  difficulty.2  The  Chief  Jus- 
ticiar was  a  special  magistrate  who  presided  over  the  whole 
aula  regis;  he  was  the  principal  minister  of  state;  the 
second  man  in  the  kingdom  and  by  virtue  of  his  office, 
the  guardian  of  the  realm  in  the  absence  of  the  king.3 

Posthumus  felt  such  guilt  of  conscience  that  he  was 
willing  to  meet  any  doom  that  might  be  accorded  him 
and  prayed  the  "upright  Justicer"  to  sentence  him,  either 
to  the  knife,  hanging,  or  have  him  poisoned,  and  his 
guilty  conscience  was  so  aroused  that  he  felt  it  would 
be  but  simple  justice  for  him  to  meet  such  an  end,  for 
otherwise  he  would  not  have  asked  this  fate  at  the  hands 
of  an  "upright  Justicer." 


1  Cymbeline,  Act  V,  Scene  V. 

2  Baker,  fol.  118;  Cron.  angl. 

s  Shars.  Bl.  Comm.  37.  Phillip  Basset  was  the  last  to  bear  this 
title,  during  the  reign  of  King  Henry  III. 

In  King  Lear  (Act  III,  Scene  VI  and  Act  IV,  Scene  III)  Lear 
refers  to  Edgar  as  "most  learned  justicer"  and  Albany  is  made 
to  say:    "This  shows  you  are  above,  You  justicers,"  etc. 


CHAPTER  XXXII. 

"TITUS  ANDRONICUS." 

Sec.  427.  Encroachment  upon  Prince's  right. 

428.  Proof  of  facts  apparent. 

429.  Bail  in  Criminal  Case. 

430.  Invoking  Justice  from  heaven. 

431.  The  Goddess  of  Justice  abandoning  the  Earth. 

432.  Libelling  the  Senate. 

433.  Prosecuting  for  Contempt. 

434.  Lawful  killing  not  murder. 

Sec.  427.    Encroachment  on  Prince's  right. — 

"Aar.     .     .     .     Now,   by  the  gods,   that  warlike   Goths 
adore, 
This  petty  brabble  will  undo  us  all. — 
Why,  lords, — and  think  you  not  how  dangerous 
It  is  to  jut  upon  a  prince's  right?"1 

The  Moor,  in  these  lines,  in  interfering  to  separate  the 
combatants,  Chiron  and  Demetrius,  suggests  the  danger- 
ous nature  of  their  quarrel,  since  it  involves  the  good 
name  of  the  wife  of  a  Prince.  The  thought  convey'd  is 
that  the  danger  of  violating  the  right  of  a  prince,  is  aug- 
mented, because  of  the  importance  of  the  person  claiming 
the  right.  This  is  not  true  in  countries  where  the  law  is 
equally  enforced  as  it  should  be,  for  the  enforcement  of 
the  right  should  be  in  equal  degree,  whether  it  is  the  right 
of  a  peasant  or  the  right  of  a  prince. 

Sec.  428.    Proof  of  facts  apparent. — 

"Tit.     High  emperor,  upon  my  feeble  knee 

I  beg  this  boon  with  tears  not  lightly  shed, 
That  this  fell  fault  of  my  accursed  sons, 
Accursed,  if  the  fault  be  prov'd  in  them, — 

Sat.     If  it  be  proved:  You  see  it  is  apparent."2 


1  Titus  Andronicus,  Act  II,  Scene  I. 
8  Titus  Andronicus,  Act  II,  Scene  IV. 

(443) 


444  THE  LAW  IN  SHAKESPEARE. 

The  father  has  about  admitted  the  guilt  of  his  sons, 
when  he  reflects  that  the  crime  has  not  been  proved 
against  them.  He  invokes  the  rule  of  law,  which  always 
requires  proof  of  one's  guilt,  to  overcome  the  presumption 
of  innocence ;  but  the  king  wrecks  this  hope  on  Titus'  part, 
by  replying  that  the  evidence  of  their  guilt  is  apparent 
and  will  need  no  proof.  In  this,  from  a  strictly  legal 
standpoint,  the  king  was  in  error,  for  if  the  sons  of  Titus 
were  to  be  legally  adjudged  guilty  of  the  offense  this 
could  only  be  done  after  an  investigation  by  a  judicial 
tribunal,  accustomed  to  try  such  issue,  on  proof  of  their 
guilt,  by  competent  legal  evidence.  So  the  father  was 
clearly  right,  in  requesting  proof,  before  their  adjudged 
guilt,  in  this  instance. 

Sec.  429.    Bail  in  criminal  case. — 

"Tit.     I  did,  my  lord :  yet  let  me  be  their  bail : 
For  by  my  father's  reverend  tomb,  I  vow, 
They  shall  be  ready  at  your  highness'  will, 
To  answer  their  suspicion  with  their  lives."1 

After  his  failure  to  prevail  upon  the  king  to  accord  his 
sons  the  right  of  a  fair  trial,  Titus  here  begs  that  he  may, 
at  least,  be  permitted  to  go  their  "bail,"  until  the  evidence 
of  their  guilt  shall  be  brought  before  them.  Bail  is  here 
used  as  a  noun,  to  describe  the  person  accepted  a?  the 
surety  for  the  principal  accused  of  a  crime.  This  is  a 
proper  and  accustomed  use  of  the  term. 

Bail,  in  law,  is  the  delivering  of  a  person  accused  of 
crime,  to  one  or  more  persons,  accepted  as  his  sureties, 
who  are  personally  bound  for  his  appearance  at  the  proper 
time,  before  the  court,  to  abide  the  judgment  of  the  court.2 
As  the  surety,  according  to  the  obligation  assumed,  in 
such  cases,  is  personally  bound  to  produce  the  person  of 
the  accused  one,  at  the  specified  time,  unless  prevented 


1  Titus  Andronicus,  Act  II,  Scene  IV. 
a  Bouvier's  Law  Dictionary. 


TITUS  ANDRONICUS.  445 

by  sickness  or  other  unavoidable  causes,  such  as  the  death 
or  legal  imprisonment  of  the  principal,  the  force  of  this 
obligation  is  asked  to  be  imposed  upon  him,  by  Titus, 
when  he  promises  that  "they  shall  be  ready,  at  your  high- 
ness' will." 

Sec.  430.     Invoking  justice  from  heaven. — 

"Tit.     And  sith  there  is  no  justice  in  earth  nor  hell, 
We  will  solicit  heaven;  and  move  the  gods, 
To  send  down  justice  for  to  wreak  our  wrongs."1 

The  Poet  in  these  lines  strongly  presents  the  pathos 
of  the  plea  of  one  who  has  failed  to  receive  justice  on  the 
earth,  of  those  who  are  endowed  with  the  ability  and 
upon  whom  the  duty  is  placed  of  dispensing  justice. 
Poor  Titus,  realizing  that  his  plea  for  justice  to  the  king 
and  his  court ,— the  only  authority  that  could  dispense 
justice  to  him, — would  be  without  avail,  turns  to  heaven, 
as  the  only  other  source  from  which  justice  could  be 
realized,  after  his  failure  to  receive  it  from  the  tribunals 
of  man. 

Sec.  431.     The  Goddess  of  Justice  abandoning  the  earth. — 

"Titus.     Come,  Marcus,  come ; — kinsmen,  this  is  the  way. 
Sir  boy,  now  let  me  see  your  archery; 
Look  ye  draw  home  enough,  and  'tis  there  straight. — 
Terras  Astraea  reliquit; 
Be  you  remembered,  Marcus,  she's  gone,  she's  fled."2 

The  calamities  had  befallen  Titus  so  thick  and  fast,  in 
return  for  his  many  years  of  upright  service  and  loyalty 
to  Rome,  that  he  finally  concluded  that  the  Goddess  of 
Justice  (Astraea)  had  abandoned  the  earth,  to  leave  mor- 
tals  to    suffer   injustice    without    relief.3       According   to 


1  Titus  Andronicus,  Act  IV,  Scene  III. 

2  Titus  Andronicus,  Act  IV,  Scene  III. 

3  Rolfe's  Titus  Andronicus,  p.  187,  notes. 


446  THE  LAW  IN  SHAKESPEARE. 

mythology  Astraea  was  the  last  goddess  to  leave  the  earth, 
when  the  golden  age  had  passed  away  and  men  began  to 
forge  weapons  and  perpetrate  acts  of  violence.  If  violence 
could  have  driven  her  from  the  earth,  then  the  wrongs 
inflicted  upon  the  noble  Titus  would  certainly  have  been 
a  sufficient  reason  for  her  to  have  withdrawn  from  the 
earth. 

Sec.  432.     Libelling  the  Senate. — 

"Sat.     .     .     What's  this,  but  libelling  against  the  Senate, 
And  blazoning  our  injustice  everywhere?"1 

Libel,  in  law,  is  the  statement,  by  a  permanent  visible 
sign,  such  as  writing,  or  by  effigy,  or  the  like,  of  some- 
thing calculated  to  convey  an  imputation  against  a  per- 
son, injurious  to  him,  in  his  trade,  profession,  or  calling, 
holding  him  up  to  contempt  or  ridicule,  or  calculated  to 
injure  him  in  the  estimation  of  men.2  Saturninus  pro- 
claims the  various  addresses  or  phillipics  of  the  Andronici, 
to  be  libelous  matter,  distributed  on  the  streets  of  Rome 
and  if  the  attacks  had  been  upon  any  certain  person  or 
persons,  they  might  have  had  this  effect,  but  a  body  such 
as  the  Senate,  would  not  be  libelled,  by  such  attacks,  so 
the  conclusion  of  the  speaker  is  not,  in  this  instance, 
in  accordance  with  the  law. 

Sec.  433.     Prosecuting  for  contempt. — 

"Tarn.     .     .     .     rather  comfort  his  distressed  plight, 
Than  prosecute  the  meanest  or  the  best, 
For  these  contempts."3 

To  prosecute  one,  is  to  array  one  before  the  bar  of  jus- 
tice and  proceed,  according  to  legal  rules  to  ascertain 
the  guilt  or  innocence  of  one  accused  of  crime.4     A  con- 

1  Titus  Andronicus,  Act  IV,  Scene  IV. 
2Bouvier's  Law  Dictionary. 
3  Titus  Andronicus,  Act  IV,   Scene  IV 
1  Bouvier's  Law  Dictionary. 


TITUS  ANDRONICUS.  447 

tempt  is  any  act  calculated  to  bring  into  disrepute  the 
constituted  legal  authority  of  a  state  or  country,  by  open 
defiance  of  the  power  of  such  authority.1  Contempts  at 
common  law  were  liable  to  prosecution  and  punishment.2 
In  making  the  false  Tamora  assume  the  virtue  of 
mercy,  in  this  instance — when  she  had  it  not — Shake- 
speare consistently  adheres  to  the  policy  of  presenting  her 
in  this  false  attitude,  that  he  discloses  elsewhere  in  the 
play. 

Sec.  434.    Lawful  killing  not  murder. — 

"Sat.     .     .     .     May  this  be  borne? — as  if  his  traitorous 
sons, 
That  died  by  law,  for  murder  of  our  brother, 
Have  by  my  means,  been  butcher' d  wrongfully."3 

The  king,  in  these  lines,  rightfully  distinguishes  be- 
tween the  lawful  killing  of  a  human  being,  and  the  wrong- 
ful or  illegal  killing  of  a  person,  wherein  lies  the  distinc- 
tion between  murder,  or  manslaughter,  and  a  legal  execu- 
tion.4 The  essence  of  the  crime  of  murder  is  that  the 
act  should  be  done  unlawfully,  i.  e.,  not  lawfully,  for  a 
justifiable  cause,  or  in  defense  of  the  person.5  So  if  the 
killing  of  the  sons  of  Titus  Andronicus  had  been  per- 
formed in  pursuance  of  the  judgment  of  a  properly  con- 
stituted court  of  justice,  such  killing  would  not  have  been 
murder  and  to  accuse  the  king  of  having  murdered  them, 
in  such  case,  would  have  been  wrong. 


1  Ante  idem. 

1  IV  Reeve's  History  Eng.  Law,  205. 
3  Titus  Andronicus,  Act  IV,  Scene  IV. 
*  Sherwood's  Cr.  Law;    Bishop's   Cr.  Law. 
'Ante  idem. 


CHAPTER  XXXIII. 

"PERICLES,  PRINCE  OF  TYRE." 

Sec.  435.  Incest. 

436.  Development  of  criminal  instinct. 

437.  Bill  of  Lading. 

438.  Poor  man's  right  in  Law. 

439.  A  litigious  peace. 

440.  Serving  clients. 

441.  Applying  judgment  to  the  Judge. 

442.  Modesty  of  Justice. 

Sec.  435.    Incest. — 

"Gow.     .     .     .     The  king  unto  him  took  a  pheere, 
Who  died  and  left  a  female  heir, 
So  buxom,  blithe,  and  full  of  face, 
As  heaven  had  lent  her  all  his  grace; 
With  whom  the  father  liking  took, 
And  her  to  incest  did  provoke."1 

Incest  is  the  unlawful  cohabitation  of  persons  of  near 
degree  of  relationship  and  the  crime,  in  many  countries, 
is  a  capital  offense,2  as  it  should  be.  Members  of  society 
guilty  of  this  unthinkable  offense  against  humanity  and 
the  rules  of  common  decency,  should  not  be  permitted  to 
live  and  corrupt  the  social  currents,  but  like  the  danger- 
ous beasts  whose  lives  are  taken  for  the  protection  of  the 
civilized  man,  persons  who  commit  this  offense  ought  to 
be  removed  from  the  world  that  no  extension  of  their 
corrupt  practices  could  result.  But  in  most  of  the  United 
States,  the  offense  is  punishable  by  imprisonment  in  the 
penitentiary  alone.3 

1  Pericles,  Prince  of  Tyre,  Act  I,  Pro. 

2  This  is  true  in  Scotland. 
"Bishop,  Criminal  Law. 

Helicanus,   in   talking  with  Escanes,   refers  to   this   crime   of 
Antiochus  as  "this  heinous  capital  offence."     (Act  II,  Scene  IV.) 

(448) 


PERICLES.  449 

Sec.  436.    Development  of  criminal  instinct. — 

"Per.     .     .     .     One  sin,  I  know,  another  doth  provoke; 
Murder's  as  near  to  lust,  as  flame  to  smoke. 
Poison  and  treason  are  the  hands  of  sin, 
Ay,  and  the  targets,  to  put  off  the  shame."1 

This  reply  of  Pericles,  to  the  king  of  Antioch,  illus- 
trates a  patent  fact  observed  by  the  criminologist,  August 
Goll,2  that  Shakespeare  possess'd  a  deep  insight  into  the 
psychological  problems  of  criminology.  That  crime  has 
its  growth  like  other  traits  of  character,  cultivated  by  a 
person,  is  now  a  generally  recognized  fact  of  science,  in 
the  study  of  criminal  types  and  as  the  Poet,  in  this  same 
scene,  makes  the  chorus,  in  the  character  of  Gower  observe 


Pericles  tells  Antiochus,  in  correctly  interpreting  the  riddle: 
"Per.    If  it  be  true  that  I  interpret  false, 
Then  were  it  certain  you  were  not  so  bad, 
As  with  foul  incest  to  abuse  your  soul."     (Act  I,  Scene  I.) 
Referring  to  the  daughter  of  Antiochus,   Pericles,   Prince   of 
Tyre,  tells  Helicanus: 
"Per.    Her  face  was  to  my  eye  beyond  all  wonder; 

The  rest  (hark  in  thine  ear)   as  black  as  incest." 

(Act  I,  Scene  II.) 
Referring  to  the  marriage  of  his  Mother  and.  Uncle,  Hamlet 
said: 

"O  most  wicked  speed,  to  post 
With  such  dexterity,  to  incestuous  sheets." 

(Act  I,  Scene  II.) 
The  Ghost,   in   Hamlet,  refers  to   the  latter's  uncle  as   "that 
incestuous,  that  adulterous  beast,"  and  exhorts  Hamlet  that  he 
shall  not 

"Let  not  the  royal  bed  of  Denmark  be 

A  couch  for  luxury  and  damned  incest."     (Act  I,  Scene  III.) 
Hamlet,  on  soliloquizing  on  the  guilt  of  his  uncle,  refers  to 
him  as  in  the  "incestuous  pleasures  of  his  bed." 

(Act  III,  Scene  III.) 
Hamlet  addresses   the   King  as   "thou   incestuous,  murd'rous, 
damned  Dane,"  after  the  death  of  his  mother.     (Act  V,  Scene  II.) 

1  Pericles,  Prince  of  Tyre,  Act  I,  Scene  I. 
2Goll's  Cr.  Types,  in  Shakespeare,  p.  27. 


450  THE  LAW  IN  SHAKESPEARE. 

that,  "by  custom  what  they  did  begin,  was,  with  long  use, 
account  no  sin,"  so  one  sin  or  criminal  act  accomplish'd, 
others  were  more  readily  accomplished  and  thus  the  whole 
realm  of  crime  was  possible  to  the  criminal  who  had  once 
entered  upon  the  path  of  crime,  or,  as  Pericles  expressed 
it,  "One  sin,     .     .     .     another  doth  provoke." 

Sec.  437.    Bill  of  lading.— 

"Per.     All  leave  us  else ;  but  let  your  cares  o'erlook 
What  shipping  and  what  lading's  in  our  haven, 
And  then  return  to  us."1 

A  bill  of  lading,  at  the  time  when  the  term  was  used 
by  Shakespeare,  was  a  memorandum  or  contract  given  by 
the  master  of  a  ship  to  the  owner,  of  goods  to  be  trans- 
ported as  cargo  on  his  vessel.2  The  words  have  acquired 
a  broader  signification,  of  late  years  and  include  any  such 
contract  given  by  a  common  carrier,  either  by  water  or 
land,  for  the  transportation  of  goods  or  merchandise.3 

Pericles,  on  preparing  for  his  voyage,  desired  a  complete 
bill  of  lading  of  the  goods  or  property  in  the  haven,  and 
in  this  manner  he  asked  for  the  legal  evidence  of  the 
contract  of  transportation. 

Sec.  438.    Poor  man's  right  in  law. — 

"2  Fish.  Help,  master,  help;  here's  a  fish  hangs  in  the 
net,  like  a  poor  man's  right  in  the  law ;  'twill  hardly 
come  out.  Ha;  bots  on't,  'tis  come  at  last,  and  'tis 
turn'd  to  a  rusty  armour."4 

The  words  which  Shakespeare  puts  into  the  mouth  of 
the  fisherman,  in  these  lines,  are  similar  to  other  refer- 
ences of  the  Poet  to  the  "law's  delays"  and  the  difficulty 
a  poor  man  has  to  free  himself  from  the  meshes  of  the 
law.     This  satire  is  not  that  of  a  lawyer,  but  of  an  observ- 

1  Pericles,  Prince  of  Tyre,  Act  I,  Scene  II. 
*  Bouvier's  Law  Dictionary. 
•Hutchinson's  Carrier's  (3d  ed.). 
4  Pericles,  Prince  of  Tyre,  Act  II,  Scene  I. 


PERICLES.  451 

kig  member  of  society,  who  sees  the  exceptional  cases 
and  makes  of  them  the  general  rule.  No  lawyer  would 
apply  such  ridicule  to  the  proceedings  of  the  courts  where- 
by the  rights  of  litigants  are  enforced,  for  being  partly 
responsible  for  the  proceedings  in  vogue  and  the  end  and 
object  being  the  equal  and  free  enjoyment  and  enforce- 
ment of  the  rights  of  all  suitors,  a  lawyer  is  the  last  person 
to  proclaim  against  the  practices  of  the  courts  or  to  bring 
his  profession  into  disrepute.  But  not  so  a  poet,  with 
Shakespeare's  grasp  upon  all  subjects.  He  would  remedy 
all  defects  in  every  system  and  his  natural  sympathy 
would  go  out  to  the  poor  and  the  oppress'd.  He  consid- 
ered it  difficult,  no  doubt,  for  a  poor  man,  to  obtain  jus- 
tice and  viewed  the  "law's  delay"  in  his  case,  as  a  particu- 
lar hardship,  when  as  matter  of  fact,  his  observation  may 
have  obtained  to  the  exceptional  cases  wherein  the  dis- 
pensation of  justice  did  not  accord  with  his  ideas  of  mercy 
or  charity. 

Sec.  439.     A  litigious  peace. — 

"Per.  Most  honour'd  Cleon,  I  must  needs  be  gone; 
My  twelve  months  are  expir'd,  and  Tyrus  stands 
In  a  litigious  peace."1 

The  Prince  of  Tyre  here  places  his  kingdom  in  the  atti- 
tude of  a  litigant  who  enjoys  peace  because  of  his  defence 
of  his  right,  in  law.  The  comparison  is  not  without  merit, 
for  as  an  individual  by  the  defense  of  his  rights,  in  law, 
gains  a  reputation  which  will  bring  him  peace,  by  the 
respect  which  his  fellows  will  entertain  for  his  course,  so 
a  nation,  by  preparations  for  war,  or  by  actual  warfare, 
will  gain  a  reputation  which  will  ultimately  bring  peace. 

Sec.  440.     Serving  clients. — 

"Bawd.     .     .     .     When  she  should  do  for  clients  her  fit- 
ment, and  do  me  the  kindness  of  her  profession,  she 

1  Pericles,  Prince  of  Tyre,  Act  III,  Scene  III. 


452  THE  LAW  IN  SHAKESPEARE. 

has  me  her  quirks,  her  reasons,  her  master-reasons, 
her  prayers,  her  knees,  that  she  would  make  a  puritan 
of  the  devil,  if  he  should  cheapen  a  kiss  of  her."1 

This  satirical  reference  of  the  Bawd,  wherein  she  com- 
pares one  of  her  trade  to  a  lawyer,  practicing  his  profes- 
sion, is  not  unlike  the  practices  of  many  of  the  profession 
of  the  law,  if  the  facts  were  known.  While  the  per  cent 
that  can,  legitimately,  be  compared  to  such  a  foul  pro- 
fession, or  trade,  are  few,  still  there  are  by  far  too  many 
who,  like  the  bawd,  serve  any  who  come,  with  a  fee, 
which  may  tempt  the  commission  of  offenses  not  less 
odious  than  the  crime  of  adultery. 

Sec.  441.     Applying  judgment  to  the  judge. — 

"Mar.  If  ye  were  born  to  honour,  show  it  now; 
If  put  upon  you,  make  the  judgment  good 
That  thought  you  worthy  of  it."2 

If  this  reflection,  by  the  incumbent  of  the  judgment- 
seat,  were  indulged  in  generally,  it  would  make  the  judg- 
ments pronounced  more  equitable,  no  doubt.  It  is  but 
the  application  of  the  golden  rule,  nothing  less,  i.  e.,  "do 
unto  others  as  you  would  have  others  do  unto  you,"  and 
this  is  a  very  good  rule  of  law,  as  it  is  of  one's  private 
conduct. 

Sec.  442.    Modesty  of  justice. — 

"Per.     .     .     .     Falseness  cannot  come  from  thee,  for  thou 
look'st 
Modest  as  justice,  and  thou  seem'st  a  palace 
For  the  crown'd  truth  to  dwell  in."3 

These  words  of  Pericles,  to  his  daughter,  in  the  simile 
used,  show  the  exalted  ideal  of  the  Poet,  in  regard  to 
justice,  a  virtue  that  he  almost  deified,  so  broad  was  his 

1  Pericles,  Prince  of  Tyre,  Act  IV,  Scene  V. 

2  Pericles,  Prince  of  Tyre,  Act  IV,  Scene  VI. 
*  Pericles,  Prince  of  Tyre,  Act  V,  Scene  I. 


PERICLES.  453 

sympathy  for  his  fellowman  and  his  poetic  justness.  Jus- 
tice does  not  go  hand  in  hand  with  ostentation  or  loud- 
ness; but  this  virtue  is  usually  found  with  modesty  and 
purity.  Marina,  to  her  father,  seemed  "a  palace  for  the 
crown'd  truth  to  dwell  in"  and  as  the  Poet's  fertile  mind 
observed,  this  would  likewise  be  a  fitting  habitation  for 
the  twin  virtue,  justice. 


CHAPTER  XXXIV. 

"KING  LEAR." 

Sec.  443.  Divesting  property. 

444.  Entailment  of  estate. 

445.  Reservation,  in  grant. 

446.  Parricide. 

447.  Identifying  criminals  by  pictures. 

448.  An  "action-taking"  knave. 

449.  Crimes  unwhipped  by  Justice. 

450.  Summoners. 

451.  "Whipped  from  tithing  to  tithing." 

452.  Imaginary  trial  of  Goneril. 

453.  Equal  rank   in  Trial   by  Battle. 

Sec.  443.    Divesting  property. 

"Lear.     .     .     .     Tell  me,  my  daughters, 

(Since  now  we  will  divest  us  both  of  rule, 

Interest  of  territory,  cares  of  state,) 

Which  of  you,  shall  we  say,  doth  love  us  most?"1 

To  divest  one  of  property,  of  the  kind  referred  to  by  the 
King,  is  to  dispossess  one  and  to  convey  or  vest  the  title  in 
another.2  Divestiture  is  characteristic  of  the  term  real 
property,  or  of  the  title  to  an  office,3  for  it  is  the  taking 
away  of  the  title,  so  the  King  speaks  of  his  act  of  divest- 
ing himself  of  "rule,  interest  of  territory  and  cares  of 
state,"  meaning  that  he  will  not  only  relinquish  the  title 
to  his  lands,  but  to  his  office,  as  king,  as  well,  and  the 
cares  accompanying  it. 


*King  Lear,  Act  I,  Scene  I. 
2  Bouvier's  Law  Dictionary. 
3Tiedeman's  R.  P.  (3d  ed.). 

(454) 


KING  LEAR.  455 

Sec.  444.    Entailment  of  estate. — 

"Lear.     .     .     .     We    make    thee    lady:    To    thine    and 
Albany's  issue 
Be  this  perpetual. — What  says  our  second  daughter, 
Our  dearest  Regan,  wife  to  Cornwall?  Speak. 

To  thee  and  thine,  hereditary  ever, 
Remain  this  ample  third  of  our  fair  kingdom ; 
No  less  in  space,  validity  and  pleasure, 
Than  that  confirm' d  on  Goneril.'71 

In  conveying  and  confirming  one-third  of  his  kingdom 
upon  Goneril  and  her  husband  and  their  issue,  as  the 
Poet  makes  Lear  do,  in  these  lines,  he  practically  entailed 
the  third  of  his  kingdom  to  his  daughter  and  the  heirs 
of  her  body  by  Albany.2 

An  entailment  arose  at  common  law,  whenever  the 
words  of  the  conveyance  indicated  an  intent  on  the  part 
of  the  grantor  that  the  legal  course  of  succession  of  the 
land  was  cut  off  and  the  title  was  to  vest  in  the  grantee 
and  certain  of  his  or  her  heirs,  as  distinguished  from  all 
of  the  grantee's  heirs,  as,  in  this  instance,  where  the 
grant  was  to  one  and  the  heirs  of  her  body,  or  issue,  by 
a  certain  husband.  This  was  an  estate  tail,  known  as  a 
special  entail.  A  grant  to  a  man  "and  the  heirs  of  his 
body,"  was  a  general  entail,  as  distinguished  from  a  grant 
"to  a  man  and  the  heirs  of  his  body,  by  his  wife,  Joan."3 

And  the  limitation,  in  the  grant  of  the  third  of  the 
kingdom  to  Regan,  "in  space,  validity  and  pleasure,"  like 
that  "confirm'd  on  Goneril,"  amounted  to  a  creation,  in 
Regan,  of  a  fee-simple  conditional,  or  an  estate  tail,  at 
common  law. 


1  King  Lear,  Act  I,  Scene  I. 

2Tiedeman's  R.  P.  (3d  ed.).  For  legislation  concerning  estates 
tail,  see  II  Reeve's  History  Eng.  Law,  459.  In  the  grant  to  his 
first  daughter,  the  language  used  by  Shakespeare  is  not  unlike 
the  habendum  of  a  comman  law  conveyance.  And  this  is  fol- 
lowed, it  will  be  noted,  further  on,  by  the  confirmation,  "Which, 
to  confirm,  this  coronet  part  between  you." 

s  II  Reeve's  History,  supra. 


456  THE  LAW  IN  SHAKESPEARE. 

Sec.  445.    Reservation,  in  grant. — 

"Lear.  .  .  .  Ourself,  by  monthly  course, 
With  reservation  of  a  hundred  knights, 
By  you  to  be  sustained,  shall  our  abode 
Make  with  you,  by  due  turns."1 

A  reservation,  in  law,  is  a  term  used  to  denote  that  part 
of  an  estate  which  is  retained  by  the  grantor,  in  the  grant 
of  a  portion  of  his  estate  to  another.2  As  the  term  land 
is  made  up  of  different  elements,  going  to  compose  the 
legal  entity,  it  is  sometimes  granted,  with  a  reservation 
of  the  minerals  in  the  soil.3  So,  in  this  instance,  after 
giving  his  kingdom  to  his  daughters,  the  king  reserved, 
or  retained  to  himself,  the  right  to  a  hundred  knights, 
to  be  by  his  grantees  sustained,  and  the  right  to  make 
his  home  with  his  daughters,  by  turn. 

Sec.   446.    Parricide. — 

"Edm.     .     .     .     But  that  I  told  him,  the  revenging  gods 
'Gainst  parricides  did  all  their  thunders  bend; 
Spoke,  with  how  manifold  and  strong  a  bond 
The  child  was  bound  to  the  father."4 

By  the  Roman  law,  every  one  who  murdered  a  near 
relative  was  held  guilty  of  parricide,  but  by  the  English 
law,  the  term  is  usually  applied  to  one  who  murdered  his 
father,  or  the  person  standing  in  the  relation  of  a  parent 
to  the  murderer.5     By  the  English  law,  the  punishment 

*King  Lear,  Act  I,  Scene  I. 
3  Tiedeman's  R.  P.    (3d  ed.). 

3  White's  Mines  and  Mining  Remedies,  Chap.  VIII. 

When  told  by  his  daughter  that  his  followers  could  not  be  main- 
tained in  a  greater  number  than  twenty-five,  Lear  tells  her  that 
"I  gave  you  all — Made  you  my  guardians,  my  depositaries;  But 
kept  a  reservation  to  be  follow'd  with  such  a  number."  (Act  II, 
Scene  IV.) 

4  King  Lear,  Act  II,  Scene  I. 

6  Bishop's  Criminal  Law ;  Russell,  Crimes ;  Sherwood's  Cr.  Law. 


KING  LEAR.  4&) 

of  parricides  was  the  same  as  that  of  any  other  murderer,1 
but  by  the  Roman  law,  a  parricide  was  sewed  in  a  leather 
sack  with  a  live  cock,  a  viper,  a  dog,  and  an  ape,  and 
cast  into  the  sea  to  take  his  chances  with  these  com- 
panions.2 Edmund  uses  the  term,  as  it  was  limited  by 
the  English  law,  to  the  murderer  of  the  parent. 

Sec.  447.    Identifying  Criminals  by  pictures.— 

"Gloster.     .     .     .     Besides,  his  picture 

I  will  send  far  and  near,  that  all  the  kingdom 
May  have  due  note  of  him ;  and  of  my  land, 
Loyal  and  natural  boy,  I'll  work  the  means 
To  make  thee  capable."3 

While  photography  had  not  reached  a  state  of  perfec- 
tion that  would  enable  the  taking  of  pictures,  in  the  man- 
ner that  obtains  to-day,4  it  was  customary,  during  the 
Poet's  time,  to  send  word  pictures,  or  descriptions  of  crim- 
inals abroad  for  the  identification  of  those  who  violated 
the  law,5  and  pictures  by  wood  engravings  and  steel  plates 
had  existed  since  the  middle  of  the  fifteenth  century.6 

It  is  not  improbable,  therefore,  that  Gloster  had  such 
"picture"  of  his  own  son,  that  he  could  send  around,  and 
the  reference  is  not  to  photographs  as  has  been  under- 
stood.7 


1Bouvier's  Law  Dictionary. 

2  See  Gibbon,  Niebuhr,  Arnold. 

8  King  Lear,  Act  II,  Scene  I. 

*The  alchemists  of  the  16th  century  made  the  important  dis- 
covery that  horn  silver  would  blacken  on  exposure  to  light,  and 
this  was  the  most  advanced  step  in  photography  they  made. 
Scheele,  a  Swedish  chemist,  found  that  it  was  blackened  quickest 
by  the  violet  ray  of  a  solar  spectrum,  in  1777,  and  twenty-five 
years  later  Ritter,  of  Jena,  demonstrated  the  existence  of  chem- 
ically active  non-visible  rays,  beyond  the  violet  ray  of  the  spec- 
trum.    Daguerre  produced  the  first  dauguerratype,  in  1825. 

5  See  Rolfe's  King  Lear,  p.  215,  notes. 

•Ottley's  Origin  and  History  of  Engraving. 

TLord  Campbell  seems  to  have  made  this  mistake.  Rolfe's 
King  Lear,  p.  215,  notes,  supra. 


458  THE  LAW  IN  SHAKESPEARE, 

Sec.  448.    An  "action-taking"  knave. — 

"Kent.  A  knave;  a  rascal;  an  eater  of  broken  meats;  a 
base,  proud,  shallow,  beggarly,  three-suited,  hundred- 
pound,  filthy,  worsted-stocking  knave;  a  lily-livered, 
action-taking,  knave,  a  whoreson,  glass-gazing,  super- 
serviceable,  finical  rogue/'1 

Kent  could  hardly  have  used  worse  epithets  toward  Os- 
wald than  this  tirade  of  abuse.  A  "lily-livered,  action- 
taking,  .  .  .  glass-gazing,  .  .  .  rogue,"  is  one  who 
was  a  coward,  with  a  white  liver.  One  who  would  resent 
an  affront  by  filing  a  suit  at  law,  rather  than  to  fight  it 
out,  like  a  man,2  and  he  intended  to  tell  him  that  he  was 
such  an  effeminate  creature  that  he  would  stand  and  gaze 
at  himself,  for  hours  in  the  looking  glass. 


Sec.  449.    Crimes  unwhipped  by  justice. — 

"Lear.     Tremble,  thou  wretch, 

That  hast  within  thee  undivulged  crimes, 
Unwhipp'd  of  justice:  Hide  thee,  thou  bloody  hand; 
Thou  perjur'd,  and  thou  simular  of  virtue, 
That  art  incestuous."3 

This  is  one  of  the  most  stirring  scenes  in  this  great 
tragedy  and  the  comparison,  by  the  mad  King,  of  the 
vengeance  of  heaven,  as  evidenced  by  the  storm  and  thun- 
der, to  the  punishment  of  the  law,  for  the  crimes  of  the 
guilty,  is,  indeed,  realistic.  The  thought  expressed,  is, 
that  if  there  are  crimes  which  have  gone  unpunished  by 
the  laws  of  man,  they  cannot  escape  the  vengeance  of 
God,  but  the  guilty  are  sure  to  suffer  at  his  hands.  The 
mad  king  feels  no  concern  for  himself,  but  at  such  a  time 
as  this,  the  wretch  who  has  committed  undivulged  crimes, 
unwhipped  of  justice;  the  perjured,  counterfeit  man  of 


1  King  Lear,  Act  II,  Scene  II. 

2  This  is  Doctor  Rolfe's  explanation  of  this  term.    Rolfe's  King 
Lear,  p.  218,  notes. 

'King  Lear,  Act  III,  Scene  II. 


KING  LEAR.  459 

virtue,  who  is  really  incestuous,  had  better  beware  the 
vengeance  from  on  high. 

The  object  of  justice  is  the  punishment  of  crimes,  as 
well  as  the  enforcement  of  rights,  so  the  interpretation 
of  the  mad  king  is  not  amiss,  in  attributing  to  justice 
the  punishment,  akin  to  whipping,  for  the  crimes  it  under- 
takes to  punish. 

Sec.  450.    Summoners. — 

"Lear.     .     .     .     Close  pent-up  guilts, 

Rive  your  concealing  continents  and  cry 

These  dreadful  summoners  grace.     I  am  a  man 

More  sinn'd  against  than  sinning."1 

In  these  lines,  the  mad  King  warns  those  who  have 
violated  the  mandates  of  the  great  Judge  from  on  High. 
The  perjured,  incestuous,  ''simulator  of  virtues,"  who  have 
practiced  on  men's  lives,  had  best  beware ;  their  guilty  con- 
sciences must  be  put  down  and  they  ought  to  beg  mercy 
from  the  heavens  "summoners."  A  summoner  is  an  offi- 
cer authorized  to  serve  process,  such  as  "summoning  of- 
fenders before  a  tribunal."2 

Sec.  451.     "Whipped  from  tithing  to  tithing."— 

"Edgar.  Poor  Tom,  that  eats  the  swimming  frog,  the 
toad,  the  tadpole,  the  wall-newt  and  the  water;  that 
in  the  fury  of  his  heart,  when  the  foul  fiend  rages, 
eats  cow-dung  for  sallets ;  swallows  the  old  rat  and  the 
ditch-dog;  drinks  the  green  mantle  of  the  standing 
pool;  who  is  whipped  from  tithing  to  tithing,  and 
stocked,  punished  and  imprisoned."3 

Disguised  as  poor  "Mad  Tom,"  Edgar  would  come  with- 
in the  description  of  persons  defined  as  "vagrants,  or 
vagabonds,"  by  the  statute  39  Elizabeth,  c.  4,4  for  by  this 

1  King  Lear,  Act  III,  Scene  II. 

2  Rolfe's  King  Lear,  p.  238,  notes. 

3  King  Lear,  Act  III,  Scene  IV. 

4  This  statute  repealed  18  Elizabeth,  c.  3,  and  35  Eliz.,  c.  5. 


460  THE  LAW  IN  SHAKESPEARE. 

act  all  "persons  delivered  out  of  goal,  who  beg  for  their 
fees/'  and  "all  who  shall  wander  about  begging"  are  de- 
fined as  "rogues,  vagabonds  and  sturdy  beggars"  and  such, 
when  found  by  any  justice,  constable,  headborough  or 
tithingman,  "be  stripped  naked  from  the  middle  upwards, 
and  be  openly  whipped  till  he  is  bloody,  and  shall  then 
be  sent  from  parish  to  parish,  by  the  officers  of  the  same, 
till  he  come  to  the  parish  where  he  was  born,"1  etc.  And 
during  the  reigns  of  Henry  VII,2  Edward  VI3  and  Henry 
VIII,4  similar  acts  were  passed  against  vagrants  and  beg- 
gars, by  which  similar  punishment  by  whipping  and  the 
stocks  was  to  be  assessed  against  these  offenders.5 

Sec.  452.    Imaginary  trial  of   Goneril. — 

"Lear.     It  shall  be  done,  I  will  arraign  them  straight: — 
Come,  sit  thou  here,  most  learned  justicer: — (To  Ed- 
gar.) 
Thou,  sapient  sir,  sit  here.     (To  the  Fool) — Now, 
you  she  foxes: — 
Edg.     Look,  where  he  stands  and  glares: — 
Wantest  thou  eyes  at  trial,  madam? 


Lear.  I'll  see  their  trial  first : — Bring  in  the  evidence. — 
Thou  robed  man  of  justice,   take  thy  place;    (To 

Edgar) 
And  thou,  his  yoke-fellow  of  equity,  (To  the  Fool) 
Bench  by  his  side: — You  are  of  the  commission,  (To 

Kent) 
Sit  you  too. 

Edg.     Let  us  deal  justly.     .     .     . 

Lear.  Arraign  her  first;  'tis  Goneril.  I  here  take  my 
oath  before  this  honorable  assembly,  she  kicked  the 
poor  king,  her  father."6 


*V  Reeve's  History  Eng.  Law,  p.  209. 

8 II  Henry  VII,  c.  2,  and  19  Henry  VII,  c.  12. 

3  4  Edw.  VI,  c.  16,  5  and  6  Edw.  VI,  c.  2. 

*  22  Henry  III,  c.  12. 

BV  Reeve's  History  Eng.  Law,  p.  210. 

6  King  Lear,  Act  III,  Scene  VI. 


KING  LEAR.  461 

It  is  notable,  in  these  lines,  that  the  Poet  does  not  forget 
to  have  the  mad  king  insist  upon  an  orderly  proceeding 
in  the  imaginary  trial  of  his  daughter,  Goneril.  At  com- 
mon law,  no  one  charged  with  a  crime  could  be  put  upon 
trial,  without  being  first  arraigned,  and  asked  whether  he 
or  she  was  guilty  or  not  guilty  of  the  charge.1  The  mad 
king  insists  upon  the  adherence  to  this  legal  preliminary 
at  the  trial.  As  justice  is  symbolized  by  the  "Blind  Ey'd 
Goddess,"  Edgar  intimates  that  the  accused  may  not  want 
to  be  tried  by  her,  but  as  her  guilt  is  great,  she  may 
require  eyes  at  her  trial  to  see  her  innocence.  At  com- 
mon law,  the  occupant  of  the  judgment  seat  was  called 
a  "justice"  and  he  was  said  to  occupy  the  Bench;2  the 
Chancellor,  or  judge  who  dispensed  equity,  on  the  equity 
side  of  the  court,  could  be  likened  to  a  "yoke-fellow"  in 
the  team  of  jurists,  working  to  dispense  justice,  and  when 
two  or  more  judges  sat  in  judgment  they  were  called  a 
Commission,  so  the  reference  to  Kent,  as  being  "of  the 
Commission,"  is  not  improper,  but  shows  the  discrimina- 
tion, in  legal  matters,  of  the  mad  king.  After  the  ar- 
raignment, it  was  always  essential  to  establish  the  guilt 
of  the  accused,  by  competent  evidence,  as  guilt  was  never 
presumed,  but  all  persons  were  presumed  innocent  of 
crime,  until  proven  guilty,  so  the  mad  king  after  the 
arraignment,  calls  for  the  evidence  and  deposes  and  gives 
evidence,  under  oath,  of  the  offense  he  thinks  his  daughter 
guilty  of. 

bishop's  Cr.  Proc,  Vol.  I,  Chap.  Arraignment;  Sherwood's  Cr. 
Law. 
2  Bouvier's  Law  Dictionary. 

To  some,  it  might  seem  beyond  belief,  that  the  Poet  would  make 
the  mad  king  follow  so  truly,  the  regular  forms  of  law,  in  this 
trial  scene.  But  to  the  author  of  these  Commentaries,  it  is  not 
unreal,  for  he  once  witnessed  an  insane  lawyer,  defend  himself 
before  a  Commission  to  inquire  into  his  sanity,  with  all  the  cun- 
ning of  the  sanest  jurist,  familiar  with  every  detail  of  the  pro- 
ceeding. 


462  THE  LAW  IN  SHAKESPEARE. 

This  whole  imaginary  trial  is  the  due  and  regular  pro- 
ceeding, outlined  by  one  familiar  with  the  administration 
of  the  criminal  law  of  England. 

Sec.  453.    Equal  rank,  in  trial  by  battle. — 

"Gon.     This  is  mere  practice,  Gloster ; 

By  the  law  of  arms,  thou  wast  not  bound  to  answer 
An  unknown  opposite;  thou  art  not  vanquish'd, 
But  cozen'd  and  beguil'd."1 

Goneril  here  advises  her  lover  of  the  law  of  trial  by 
battle,  for  by  the  law  of  arms,  through  which  this  bar- 
barous custom  was  carried  out,  if  the  adversary  was  not  of 
equal  rank,  or  known  to  be  of  equal  rank,  with  the  person 
challenged,  the  latter  need  not  fight,  and,  if  he  did  fight, 
in  case  of  his  defeat,  he  was  not  adjudged  guilty,  as  he 
would  have  been  had  he  fought  with  one  of  equal  rank.2 


1  King  Lear,  Act  V,  Scene  III. 

2  Reeve's  History  Eng.  Law,  Vol.  I,  p.  393;  Vol.  Ill,  p.  329;  Vol. 
IV,  p.  58. 


CHAPTER  XXXV. 

"ROMEO  AND  JULIET." 

Sec.  454.  Bond  to  Keep  the  Peace. 

455.  Wife's  legal  status. 

456.  Sale  of  Life  Tenure. 

457.  Amercement  by  fine. 

458.  Murder   to   kill   murderer   illegally. 

459.  Tybalt's  death  murder  at  Romeo's  hands. 

460.  No  slander  to  speak  the  truth. 

461.  Label  appended  to  deed. 

462.  Sale  of  poison  contrary  to  Italian  Law 

463.  Purging  impeachment. 

Sec.  454.    Bond  to  keep  the  peace. — 

"Cap.     And  Montague  is  bound  as  well  as  I, 
In  penalty  alike ;  and  'tis  not  hard,  I  think, 
For  man  as  old  as  we  to  keep  the  peace."1 

Offenses  against  the  public  peace  are  those  offenses  which 
consist  either  in  an  actual  breach  of  the  peace,  or  conduct 
which  leads  directly  to  an  open  breach.2  Such  offenses 
may  be  classified  under  the  heads  of  unlawful  assemblies, 
riots,  affrays,  challenging  and  fighting  and  duels,  and 
other  similar  misdemeanors. 

The  offense  committed  by  the  servants  of  these  rival 
houses  of  Capulet  and  Montague,  was  properly  an  affray, 
which  is  a  public  assault,  or  one  committed  in  the  pres- 
ence of  third  parties.  A  duel  was  such  an  offense  and 
because  of  the  likelihood  of  others  present  joining  in  the 
affray,  all  present  were  held  to  be  principal  offenders,  at 
common  law,  and  the  principals  were  liable  to  arrest  and 
subject  to  be  bound  over  to  keep  the  peace.3 


1  Romeo  and  Juliet,  Act  I,  Scene  II. 

2Cooley,  Torts,  348. 

• III  Reeve's  History  Eng.  Law,  p.  202. 

(463) 


464  THE  LAW  IN  SHAKESPEARE. 

The  Prince  had  commanded  the  peace,  in  the  street 
brawl,  in  the  preceding  scene,  when  he  told  Capulet  and 
Montague:  "If  ever  you  disturb  our  streets  again,  your 
lives  shall  pay  the  forfeit  of  the  peace."  And  they  were 
commanded  to  appear  before  him  at  "old  Free-town,  our 
common  judgment-place,"  to  know  his  further  pleasure. 
At  this  hearing,  the  two  enemies  had  been  bound  over  to 
keep  the  peace,  from  these  lines  of  Capulet  as  this  was 
a  familiar  proceeding,  in  vogue  in  all  such  causes.1 

Sec.  455.    Wife's  legal  status. — 

"Fri.     Come,  come  with  me,  and  we  will  make  short  work ; 
For,  by  your  leaves,  you  shall  not  stay  alone, 
Till  holy  church  incorporate  two  in  one."2 

The  Friar  here  clearly  referred  to  the  legal  status  of  the 
wife,  after  celebration  of  the  holy  rites  of  the  common 
law  civil  contract  of  marriage.  At  common  law,  after 
marriage,  the  wife  had  no  separate  legal  existence  but  her 
legal  entity  was  merged,  so  to  speak,  into  that  of  her  hus- 
band.3 By  the  fiat  of  the  law  the  two  became  one,  by 
marriage,  and  the  otherwise  separate  and  distinct  legal 
existence  of  the  femme  sole,  was  abolished  and  the  two 
became  "incorporate"  into  one.4 

1Ever  since  the  reign  of  Edward  I,  it  had  been  the  office  of 
the  king's  justices,  of  inferior  judges,  ministers  of  justice,  sher- 
iffs and  the  like  officials,  to  keep  the  peace  of  the  kingdom.  "The 
manner  in  which  these  officers  might  exercise  their  authority  was, 
by  committing  to  custody  all  those  whom  they  saw  actually  break- 
ing the  peace;  or,  as  said  above,  they  might  admit  them  to  bail, 
or  oblige  them  to  give  sureties  for  keeping  the  peace."  Ill  Reeve's 
History  Eng.  Law,  p.  202. 

*  Romeo  and  Juliet,  Act  II,  Scene  VI. 

8  Bishop,  Mar.  &  Div.,  Chap.  II. 

4  Rogers,  Dom.  Rel. 

In  Venus  and  Adonis,  it  is  said:  "Her  arms  do  lend  his  neck 
a  sweet  embrace;  Incorporate  then  they  seem;  face  grows  to 
face."     (539,  540.) 


ROMEO  AND  JULIET.  465 

Sec.  456.    Sale  of  life  tenure. — 

"Ben.  An'  I  were  so  apt  to  quarrel  as  thou  art,  any  man 
should  buy  the  fee-simple  of  my  life,  for  an  hour  and 
a  quarter. 

Mer.     The  fee-simple.     0  simple."1 

A  fee-simple  estate  is  an  estate  of  inheritance,  passing 
directly  to  the  heirs  general  of  the  owner — as  distinguished 
from  a  base  or  qualified  fee  which  goes  to  special  heirs 
of  his  body — if  he  dies  intestate,  subject  to  no  restrictions 
or  qualifications  and  it  is  the  highest  estate  known  to  the 
law  of  land  tenures.2  A  fee-simple  estate  may  either  be 
created  by  deed,  or  acquired  by  purchase,3  as  elsewhere 
seen.4 

Benvolio  means  to  say  to  Mercutio,  that  if  he  were  as 
quarrelsome  as  the  latter,  his  life  would  be  in  such  danger, 
that  he  would  sell  the  whole  tenure  of  his  life  for  an  hour 
and  a  quarter.  Mercutio,  who  has  more  faith  in  his  own 
prowess,  ridicules  the  idea  of  selling  the  fee-simple  of  his 
life  for  such  a  small  return  and  pronounces  such  a  bar- 
gain "simple." 

Sec.  457.    Amercement  by  fine. — 

"Prin.     ...     I  have  an  interest  in  your  hates'  pro- 
ceeding, 
My  blood  for  your  rude  brawls  doth  lie  a  bleeding; 
But  I'll  amerce  you  with  so  strong  a  fine, 
That  you  shall  all  repent  the  loss  of  mine."5 

To  amerce  one  is  to  assess  a  pecuniary  punishment  at 
the  will  of  the  king  or  lord  paramount,  in  some  arbitrary 
sum,  for  the  commission  of  some  offense,  for  which  the 
penalty  is  assessed.6     The  difference  between  a  fine  and  an 

1  Romeo  and  Juliet,  Act  III,  Scene  I. 

2Tiedeman,  R.  P.,  Chap.  Ill  (3d.  ed.). 

8  Ante  idem. 

*  See  Chapter  III. 

6  Romeo  and  Juliet,  Act  III,  Scene  I. 

■Bouvier's  Law  Dictionary. 


466  THE  LAW  IN  SHAKESPEARE. 

amercement,  is  that  the  former  is  fixed,  within  certain 
limits,  by  the  law,  while  the  latter  may  be  assessed  arbi- 
trarily, at  the  will  of  the  chief  executive. 

The  Prince,  in  these  lines,  advises  the  combatants  that 
he  is  interested  in  the  affrays,  whereby  the  State  loses  its 
citizenship,  for  in  killing  the  citizens,  the  State  and  indi- 
rectly the  Prince,  himself,  loses  his  life  blood,  in  the 
death  of  his  citizens.  This  is  the  basis  of  the  exercise  of 
police  power,  in  all  civilizations,  and  the  Poet  struck  at 
the  very  element  of  the  criminal  law,  in  the  language 
used  by  the  Prince. 

Sec.  458.    Murder  to  kill  murderer  illegally. — 

"Mori.     Not  Romeo,  prince,  he  was  Mercutio's  friend; 

His  fault  concludes  but,  what  the  law  should  end 

The  life  of  Tybalt, 
Prin.     And  for  that  offense, 

Immediately  we  do  exile  him,  hence."1 

The  argument  of  Romeo's  father  is  based  upon  his  affec- 
tion for  his  son,  not  upon  any  principle  of  law.  No  one 
has  the  right  to  take  the  law  into  his  own  hands  and  it  is 
none  the  less  murder,  that  the  deceased  was  himself  a  mur- 
derer, unless  he  was  executed,  according  to  law.2  Tybalt 
was  a  murderer  in  killing  Mercutio,  for  death  by  duelling, 
was  murder,  at  common  law,3  but  this  did  not  give  Romeo 
a  right  to  kill  him,  for  he  was  entitled  to  a  trial  for  the 
offense  and  could  only  be  legally  killed,  after  a  legal  con- 
viction for  the  crime.  The  prince  therefore  decided  ac- 
cording to  law,  in  refusing  to  recognize  this  defense  for 
Romeo. 

Sec.  459.    Tybalt's  death  murder  at  Romeo's  hands. 

"Fri.     0  deadly  sin:  0  rude  unthankf ulness : 

Thy  fault  our  law  calls  death ;  but  the  kind  prince, 

1  Romeo  and  Juliet,  Act  III,  Scene  I. 
•Bishop's  Criminal  Law. 
•  Sherwood's  Criminal  Law. 


ROMEO  AND  JULIET.  467 

Taking  thy  part,  hath  rush'd  aside  the  law, 

And  turn'd  that  black  word  death  to  banishment."1 

The  Friar  was  right.  Taking  human  life,  by  duelling, 
at  common  law,  was  murder  and  murder  was  punishable 
by  death.2  So  Romeo  was  guilty  of  murder  or  man- 
slaughter, at  the  least,  in  killing  Tybalt  by  duelling  and 
was  liable  to  be  punished  by  death,  for  the  offense.  It 
was  an  act  of  clemency  or  pardon,  on  the  part  of  the 
Prince,  to  spare  his  life  and  to  exile  him,  instead.  And 
in  doing  so,  he  "rush'd  aside  the  law"  and  prevented  the 
lawful  sentence  of  death,  by  assessing  the  milder  punish- 
ment of  banishment. 

Sec.  460.    No  slander  to  speak  the  truth. — 

"Jul.     That  is  no  slander,  sir,  that  is  a  truth ; 
And  what  I  spake,  I  spake  it  to  my  face."8 

Juliet's  defense  to  the  charge  of  slander  that  Paris  pre- 
fers against  her  is  two-fold,  first  that  she  spoke  the  truth 
and  not  a  falsehood,  and,  second,  that  she  did  not  publish 
the  words,  but  uttered  them  to  his  face.  Both  of  these 
replies  were  good  legal  defenses  to  the  charge  of  slander, 
for  the  truth  of  the  assertion  is  always  a  defense  and  if 
the  words  were  spoken  to  the  alleged  injured  person  and 
not  about  him,  to  a  third  person  there  is  no  publication  of 
the  slander,  hence,  no  slander,  in  law.4 


461.     Label  appended  to  deed. — 

Jul.     .     .     .     And   ere   this   hand,   by   thee   to  Romeo 
seal'd, 
Shall  be  the  label  to  another  deed. 


1  Romeo  and  Juliet,  Act  III,  Scene  III. 

2  Bishop's  Criminal  Law. 

The  good  Friar  further  said:     "The  law,  that  threatens  death, 
becomes  thy  friend,  And  turns  it  to  exile."     (Act  III,  Scene  III.) 

3  Romeo  and  Juliet,  Act  IV,  Scene  I. 

4  Cooley's  Torts,  193. 


468  THE  LAW  IN  SHAKESPEARE, 

Or  my  true  heart  with  treacherous  revolt 
Turn  to  another,  this  shall  slay  them  both."1 

In  the  time  of  Shakespeare,  the  act  of  sealing  written 
instruments,  such  as  deeds  of  conveyance,  was  given  much 
more  prominence  than  it  is  to-day,  for  while  signing  was 
dispensed  with,  as  a  legal  prerequisite  of  such  contracts,  it 
was  essential  that  all  such  written  instruments  should  be 
sealed.  For  this  purpose  soft  wax  was  used  and  an  im- 
pression was  made,  upon  a  separate*  ribbon,  or  "label," 
which  was  attached  to  the  deed,  leaving  it  appendant,  as 
a  label.2  It  is  not  probable,  however,  that  Juliet  had  ever 
executed  such  a  deed  and  why  she  should  use  these  legal 
terms,  is  of  course  a  mystery,  except  that  it  shows  the  Poet 
was  himself  familiar  with  them. 

Sec.  462.    Sale  of  poison  contrary  to  Italian  law. — 

"A p.     Such  mortal  drugs  I  have ;  but  Mantua's  law 
Is  death,  to  any  he  that  utters  them."3 

Long  prior  to  the  period  of  the  Poet's  time,  the  prev- 
alency  of  death  by  poisoning  had  led  to  the  strictest  laws 
preventing  the  sale  of  drugs  that  would  take  human  life, 
in  cities  and  countries  subject  to  the  Roman  law.4  During 
the  reign  of  Henry  VIII,  in  England,  the  crime  became  so 
odious  that  a  statute  was  passed  making  murder  by  poison- 
ing punishable  by  boiling  the  murderer  in  lead  and  oil.5 
By  the  14  and  15  Victoria,  the  sale  of  arsenic  and  other 
poisons  is  regulated  and  forbidden,  except  in  accordance 
with  the  law,  under  strict  penalties.8 

1  Romeo  and  Juliet,  Act  IV,  Scene  I. 

2  The  Duke  of  York  discovered  the  contracts  in  his  son's  pos- 
session, by  the  seals,  or  labels,  protruding  from  his  pocket,  (Rich- 
ard II,  Act  V,  Scene  II)  and  in  Cymbeline  the  word  label  was 
used  for  the  deed  itself.     (Act  V,  Scene  V.) 

8  Romeo  and  Juliet,  Act  V,  Scene  I. 

4Heineccii,  Hist.  Jur.  Civ.;  Niebuhr,  Roman  Hist.;  Hook's  Hist. 
Rome. 
5 IV  Reeve's  Hist.  Eng.  Law,  427. 
•Bishop's  Criminal  Law;  Bishop's  Stat.  Crimes. 


ROMEO  AND  JULIET.  469 

Sec.  463.    Purging  impeachment. — 

"Fri.     .     .     .     And  here  I  stand,  both  to  impeach  and 
purge 
Myself  condemn'd  and  myself  accus'd."1 

To  impeach,  is  to  accuse  or  charge  one  with  a  crime  or 
misdemeanor,  as  well  as  to  exhibit  charges  of  maladminis- 
tration against  a  public  officer,  before  a  competent  trib- 
unal.2 To  purge,  is  to  clear  from  guilt  or  moral  defile- 
ment, by  establishing  one's  innocence  of  the  charge  of 
crime.3  In  other  words,  the  Friar,  while  admitting  the 
facts  which  will  show  his  connection  with  the  return  of 
Romeo,  and  his  presence  at  the  tomb,  will  disclose  the 
truth  sufficient  to  show  that  he  had  no  criminal  connec- 
tion with  the  affair  and  thus  free  himself  from  any  charge 
of  wrongdoing. 

Romeo  admitted  that  he  was  asking  the  Apothecary  to  violate 
the  law,  but  urged  him  to  do  so,  by  the  following  reasoning: 
"The  world  is  not  thy  friend,  nor  the  world's  law: 
The  world  affords  no  law,  to  make  thee  rich; 
Then  be  not  poor,  but  break  it  and  take  this." 

(Act  V,  Scene  I.) 
Speaking  of  the  laws  against  poisoning  in  Europe,  Doctor  Rolfe, 
in  Romeo  and  Juliet,  said:  "Secret  poisoning  became  so  common 
in  Europe,  in  the  16th  century,  that  laws  against  the  sale  of 
poisons  were  made  in  Spain,  Portugal,  Italy  and  other  countries." 
Rolfe's  Romeo  and  Juliet,  p.  264,  notes. 

1  Romeo  and  Juliet,  Act  V,  Scene  III. 
2Bouvier's  Law  Dictionary. 
"Bouvier's  Law  Dictionary. 


CHAPTER  XXXVI. 

"HAMLET,  PRINCE  OF  DENMARK." 

Sec.  464.  Law  and  Heraldry. 

465.  Trespass  vi  et  armis. 

466.  Forgeries. 

467.  Appurtenances. 

468.  Detecting  crime. 

469.  Quietus.  p 

470.  Fratricide. 

471.  No  corrupted  Justice  above — Evidence  by   interested 

party. 

472.  Counsellor. 

473.  Pleas  in  Abatement. 

474.  "Crowners-quest  Law." 

475.  Hamlet's  legal  comments  on  the  skull. 

476.  Hamlet's  survivorship  and  disposal  of  the  Crown. 

Sec.  464.    Law  and  Heraldry. — 

"Hor.    .     .     .     our  valiant  Hamlet 

(For  so  this  side  of  our  known  world  esteem'd  him,) 

Did  slay  this  Fortinbras,  who,  by  a  seal'd  compact, 

Well  ratified  by  law  and  heraldry, 

Did  forfeit,  with  his  life,  all  those  his  lands, 

Which  he  stood  seiz'd  of,  to  the  conqueror: 

Against  the  which,  a  moiety  competent 

Was  gaged  by  our  king;  which  had  return'd 

To  the  inheritance  of  Fortinbras, 

Had  he  been  vanquisher ;  as,  by  the  same  co-mart, 

And  carriage  of  the  article  design'd, 

His  fell  to  Hamlet."1 

The  Poet  never  forgets  to  mention  the  legal  prerequisite 
to  such  legal  documents  as  this  "compact,"  that  it  con- 
tained a  seal,  for,  in  his  day,  all  such  legal  instruments 
were  required  to  be  sealed,  and  much  greater  importance 
was  attached,  in  law,  to  the  requisite  of  sealing,  than  at 
the  present  day.2 

1  Hamlet,  Prince  of  Denmark,  Act  I,  Scene  I. 
*  II  Reeve's  History  English  Law,  54. 

(470) 


HAMLET.  *  471 

By  the  terms  "law  and  heraldry"  it  was  intended  to 
express  the  thought  that  the  contract  complied  with  the 
legal  requirements  and  was  in  form  and  substance  a  legal 
document,  and  since  courts  of  chivalry  took  cognizance  of 
undertakings  touching  deeds  of  arms  and  warlike  enter- 
prises outside  the  realm,  that  this  agreement  also  had  the 
binding  force  of  honour  given  it  by  heraldry. 

By  the  terms  of  the  "compact,"  if  Fortinbras  should  be 
vanquished,  his  lands  were  to  go  to  Hamlet  and,  on  the 
other  hand,  in  case  of  Hamlet 's  fall,  his  lands  were  to  go 
to  Fortinbras.  "Co-mart"  means  joint  agreement  or  bar- 
gain, by  the  terms  of  which  the  loser  was  to  also  lose 
his  lands. 

Sec.  465.    Trespass  vi  et  armis. — 

"Hor.     .     .     .     young  Fortinbras, 

Of  unimproved  mettle  hot  and  full, 

Hath,  in  the  skirts  of  Norway,  here  and  there, 

Shark'd  up  a  list  of  landless  resolutes, 

For  food  and  diet,  to  some  enterprise 

That  hath  a  stomach  in't:  which  is  no  other 

(As  it  doth  well  appear  unto  our  state,) 

But  to  recover  of  us  by  strong  hand, 

And  terms  compulsatory,  those  'foresaid  lands 

So  by  his  father  lost."1 

In  legal  contemplation,  the  land  of  every  man  is  sur- 
rounded by  a  close,  or  boundary,  and  even  in  the  absence 
of  a  physical  boundary,  such  as  a  fence  or  hedge,  there 
exists  this  invisible  ideal  boundary,  which  effectually  sep- 
arates the  land  of  the  owner  from  all  the  land  of  his 
neighbors.  Any  unwarranted  breaking  through  this  close, 
at  common  law,  gave  the  remedy  by  an  action  quare 
clausum  f regit,  and  if  the  entry  was  accomplished  by 
force  and  violence,  it  gave  rise  to  an  action  vi  et  armis.2 
Even  if  a  man  had  the  legal  title  to  land,  he  must  not 


Hamlet,  Prince  of  Denmark,  Act  I,  Scene  I. 
Cooley,  Torts. 


472  THE  LAW  IN  SHAKESPEARE. 

attempt  to  recover  possession  by  force  and  arms,  but  must 
resort  to  a  legal  action  for  the  possession  and  if  he  did, 
he  was  liable  to  the  action  of  trespass  vi  et  armis.1 

Horatio  here  conveys  the  idea  that  Fortinbras,  in  com- 
ing for  his  lands  with  force  and  violence  is  a  trespasser, 
for  although  his  father  may  have  lost  his  title  wrongfully, 
he  should  not  have  taken  the  law  into  his  own  hands; 
but  this  reasoning,  while  applicable  to  the  property  rights 
of  an  individual,  could  not  be  applied  to  the  land  of  a  king- 
dom and  force  and  violence  is  yet  the  only  method  known 
for  the  enforcement  of  a  right,  which  a  nation  refuses  to 
recognize,  since  no  forum  exists  for  the  enforcement  of 
such  claims  in  any  other  manner. 

Sec.  466.    Forgeries. — 

"Pol.     .     .     .     and  there  put  on  him, 

What  forgeries  you  please;  marry,  none  so  rank 
As  may  dishonour  him."2 

Forgery,  at  common  law,  was  the  fraudulent  making 
or  altering  of  a  writing  or  seal,  to  the  prejudice  of  another's 
rights.3  It  is  an  essential  of  the  crime  that  the  altera- 
tion or  counterfeit  was  made  with  the  intent  to  defraud, 
but  it  is  not  essential  that  an  actual  defrauding  should 
result.4 

Polonius,  here,  in  his  instruction  regarding  the  detec- 
tion of  his  son  in  any  small  offenses,  authorizes  his  accu- 
sation of  "what  forgeries  you  please,"  but  in  qualifying 
this  phrase,  by  the  subsequent  advice  that  he  should  not 
be  accused  of  anything  which  could  dishonour  him,  it  is 
apparent  that  the  term  is  used  in  other  than  its  strict  legal 
interpretation,  and  rather  in  the  sense  of  fabrication,  or 

*As  far  back  as  the  reign  of  Edward  I,  in  England,  actions 
were  filed  for  trespass  vi  et  armis,  against  those  wrongfully  enter- 
ing upon  land  of  another.  Ill  Reeve's  History  English  Law,  57,  61. 

"Hamlet,  Prince  of  Denmark,  Act  II,  Scene  I. 

"Bouvier's  Law  Dictionary. 

4  Bishop's  Criminal  Law,  Forgery. 


HAMLET.  473 

license,  since  to  accuse  one  of  forgery  would  be  to  charge 
him  with  an  offense  that  would  work  his  dishonor  directly. 

Sec.  467.     Appurtenances. — 

"Ham.     .     .     .     Come  then,  the  appurtenance  of  wel- 
come is  fashion  and  ceremony."1 

In  the  law  of  real  property,  appurtenances  are  those 
things,  belonging  to  another  thing  as  principal,  which 
pass  as  incidents  of  the  principal  thing,  as  in  the  convey- 
ance of  a  house. and  tract  of  land,  a  right  of  way  would 
pass,  as  a  necessary  incident  of  the  grant.2 

Welcome,  being  the  principal  thing  expressed,  in  the 
speech  made  by  Hamlet,  he  lists  fashion  and  ceremony, 
as  mere  incidents,  accompanying  the  welcome,  as  matter 
of  right. 

Sec.  468.    Detecting  crime. — 

"Ham.     ...     I  have  heard, 

That  guilty  creatures,  sitting  at  a  play, 
Have,  by  the  very  cunning  of  the  scene, 
Been  struck  so  to  the  soul,  tUat  presently 
They  have  proclaim'd  their  malefactions.3 

Like  many  other  lines  of  Shakespeare,  this  verse  evi- 
dences the  familiarity  of  the  Poet  with  the  psychological 
problems  of  criminology,  which  abound  in  his  criminal 
types.  Expert  criminologists  have  noted  how  he  seems  to 
solve  the  deepest  and  most  intricate  questions  of  this 
science,  as  if  in  play.4 

The  effect  of  suggestion  to  the  criminal  was  certainly 
appreciated,  as  a  means  of  bringing  the  actions  to  bear 
which  would  disclose  the  evidence  of  his  crime,  if  not  by 
a  voluntary  confession,  by  words,  or  acts,  from  which  his 


1  Hamlet,  Prince  of  Denmark,  Act  II,  Scene  II. 
2Tiedeman's  R.  P.  (3d  ed.) ;  Bouvier's  Law  Dictionary. 
3  Hamlet,  Prince  of  Denmark,  Act  II,  Scene  II. 
4Goll's  Criminal  Types  in  Shakespeare,  24,  26. 


474  THE  LAW  IN  SHAKESPEARE. 

guilt  could  be  determined.  It  is  needless  to  say  that  this 
same  method  is  resorted  to  by  detectives  and  criminologists 
to  discover  the  evidences  of  crime  in  all  civilized  countries 
to-day.1 

Sec.  469.     Quietus.— 

"Ham.     .     .     .     For   who   would   bear   the   whips   and 
scorns  of  time, 
The  oppressor's  wrong,  the  proud  man's  contumely, 

When  he  himself  might  his  quietus  make, 
With  a  bare  bodkin?"2 

Quietus  is  a  final  and  complete  discharge  or  acquittance, 
from  some  existing  obligation,  as  an  order  by  a  competent 
tribunal,  as  to  a  claim,  over  which  it  has  jurisdiction, 
that  it  shall  be  forever  silenced  or  discharged.8  The  term 
is  used  in  the  sense  of  rest,  repose,  or  death,  by  Hamlet,  in 
these  lines  and  he  concludes  that  if  it  were  not  for  the 
something  after  death,  "which  must  give  us  pause" ;  that 
makes  calamity  of  so  long  life,  any  one  would  be  tempted 


1  Ante  idem. 

Hamlet  tells  Horatio: 
"Observe  my  uncle;  if  his  occulted  guilt 
Do  not  itself  unkennel  in  one  speech, 
It  is  a  damned  ghost  that  we  have  seen."    Act  III,  Scene  II.) 

Considering  how  the  play  will  affect  his  Uncle,  Hamlet  said: 
"Ham.  .  .  .  I'll  have  these  players  play  something  like  the 
murder  of  my  father,  Before  mine  uncle:  I'll  observe  his  looks," 
and  in  the  preceding  lines,  he  said:  "For  murder  though  it  have 
no  tongue,  will  speak  with  most  miraculous  organ."  (Act  II, 
Scene  II.) 

2  Hamlet,  Prince  of  Denmark,  Act  III,  Scene  I. 
3Bouvier's  Law  Dictionary. 

Speaking  of  Nature's  sovereign  power  over  mortals,  the  Poet 
said,  in  the  CXXVI'  Sonnet: 

"Her  audit,  though  delay'd,  answer'd  must  be 
And  her  quietus  is  to  render  thee."     (11,  12.) 


HAMLET.  475 

to  end  it  all — to  bring  the  much  desired  repose  and  quiet — 
by  his  own  hand. 

Sec.  470.    Fratricide. — 

"King.     0,  my  offence  is  rank,  it  smells  to  heaven; 
It  hath  the  primal  eldest  curse  upon  % 
A  brother's  murder."1 

The  crime  of  murdering  a  brother  is  known  to  the  law 
as  the  crime  of  fratricide2  and  this  is  what  the  King  refers 
to,  in  these  lines.  The  fact  that  the  murder  of  Abel,  by 
his  brother  Cain,  was  the  first  case  of  fratricide  on  record, 
justified  the  King  in  his  reference  to  his  case  as  one  that 
"smells  to  heaven,"  since  it  had  the  "primal  eldest  curse 
upon  't,"  for  the  Lord  said  unto  Cain:  "And  now  art 
thou  cursed  from  the  earth,  which  hath  opened  her  mouth 
to  receive  thy  brother's  blood  from  thy  hand."3 

Sec.  471.    No  corrupted  justice  above,  Evidence  by  in- 
terested party. — 

"King.     ...     In  the  corrupted  currents  of  this  world, 
Offence's  gilded  hand  may  shove  by  justice; 
And  oft  'tis  seen,  the  wicked  prize  itself 
Buys  out  the  law:  But  'tis  not  so  above: 
There  is  no  shuffling,  there  the  action  lies 
In  his  true  nature ;  and  we  ourselves  compell'd 
Even  to  the  teeth  and  forehead  of  our  faults, 
To  give  in  evidence."4 

The  Poet's  voice  is  always  raised  against  the  class  of 
crimes  known  as  offenses  against  the  enforcement  of  jus- 
tice and  he  aptly  draws  the  terrible  example  of  a  corrupted 
judiciary,  as  compared  to  the  even  handed  justice  above — 
according  to  our  conceptions — where  "there  can  be  no 
shuffling,"  but  "the  action  lies,  in  its  true  nature,"  and 


1  Hamlet,  Prince  of  Denmark,  Act  III,  Scene  III. 
2Bouvier's  Law  Dictionary;  Bishop's  Criminal  Law. 

3  Genesis.  IV,  11,  12. 

4  Hamlet,  Prince  of  Denmark,  Act  III,  Scene  III. 


476  THE  LAW  IN  SHAKESPEARE. 

according  to  infallible  standards,  the  right  alone  prevails. 
This  is  a  beautiful  picture  for  one  who  fully  appreciates 
the  beauty  of  the  virtue  which  we  call  justice.  But  these 
lines  do  more  than  this,  and  also  present  the  injustice  of 
the  common  law  rule  regarding  the  testimony  of  inter- 
ested persons  and  those  accused  of  crime. 

At  common  law  a  party  to  the  record,  or  one  directly 
interested  in  the  result  of  the  suit  was  not  a  competent 
witness,1  and  even  under  the  rule  of  evidence  obtaining 
in  England  and  the  United  States  today,  one  accused  of 
a  crime  cannot  be  compelled  to  give  testimony  against 
himself,2  nor  can  a  witness  be  compelled  to  answer  ques- 
tions that  tend  to  incriminate  himself.3  This  rule  of  evi- 
dence was  evidently  known  to  Shakespeare  and  it  im- 
pressed him  as  not  in  keeping  with  the  realization  of 
justice,  for  while  premising  that  such  evidence  could  not 
be  extorted  by  the  laws  of  man,  he  compared  this  rule 
with  the  ideal  rule  that  ought  to  obtain — according  to  his 
judgment — where  "we  ourselves''  could  be  "compell'd, 
even  to  the  teeth  and  forehead  of  our  faults,  to  give  in 
evidence." 

Sec.  472.    Counselor. — 

"Ham.     .     .     .     Indeed,  this  counselor, 

Is  now  most  still,  most  secret,  and  most  grave, 
Who  was  in  life  a  foolish  prating  knave."4 

A  counselor  is  one  who  is  consulted  by  a  client  in  a 
pending  cause,  or  who  gives  advice  in  regard  to  questions 
of  law,  or  one  whose  profession  is  to  advise  in  matters  of 
law,  and  manage  causes  for  his  clients.5 

As  some  counselors  are  garrulous  and  talk  too  much 
in   giving  their  advice,   Hamlet  evidently   felt— as  the 

^reenleaf  on  Evidence   (14th  ed.). 

'Ante  idem. 

3Greenleaf  on  Evidence  (14th  ed.). 

4  Hamlet,  Prince  of  Denmark,  Act  III,  Scene  IV. 

6Bouvier's  Law  Dictionary. 


HAMLET.  477 

Poet  makes  him  speak — the  common  contempt  generally 
entertained  for  such  members  of  the  legal  profession,  for 
Polonius  dead,  was  "most  still,  most  secret,  and  most 
grave,"  "who  was,  in  life,  a  foolish  prating  knave,"  and 
thus,  the  conclusion  is  irresistible,  that  counselors  who 
betray  their  clients'  secrets,  those  who  could  not  be  still 
or  grave,  were  considered  better  off,  as  was  Polonius. 

Sec.  473.    Pleas  in  abatement. — 

"King.     .     .     .     That  we  would  do, 

We  should  do  when  we  would ;  for  this  would  changes, 
And  hath  abatements  and  delays  as  many, 
As  there  are  tongues,  are  hands,  are  accidents."1 

This  verse  refers  to  the  common  custom  of  filing  pleas 
in  abatement  in  the  common  law  practice,  which  were 
pleas  filed  by  a  defendant  in  a  civil  or  criminal  case,  by 
means  of  which,  on  some  formal  or  technical  ground,  he 
sought  to  abate  or  quash  the  action.2  Such  pleas  are  to 
be  distinguished  from  pleas  to  the  merits  or  pleas  in  bar, 
which  affected  the  right,  rather  than  the  remedy,  that 
the  former  plea  was  addressed  to  generally.3  As  the 
effect  of  such  pleas,  if  successful,  was  to  bring  about  a 
new  action  and  hence  a  consequent  delay,  the  Poet,  as 
elsewhere,4  condemns  such  practice. 

Sec.  474.    "Crowners-quest  law." — 

"1  Clo.     Is  she  to  be  buried  in  Christian  burial,  that 
willfully  seeks  her  own  salvation? 

1  Hamlet,  Prince  of  Denmark,  Act  IV,  Scene  VII. 

2Bouvier's  Law  Dictionary;   Stephens,  Common  Law  Pleading. 

3  We  find,  during  the  reign  of  Henry  III,  Reeves  said:  "A  writ 
abated,  is  obtained  upon  suggestion  or  falsehood,  or  the  suppres- 
sion of  truth.  If  the  demandant  or  tenant  died,  the  writ  abated, 
and  the  action  too ;  but  if  there  were  more  than  one,  as  parceners, 
having  one  right,  though  the  writ  abated  the  action  survived.  If 
there  was  any  error  in  the  names  of  persons,  the  writ  abated." 
Bracton,  414,  b;   II  Reeve's  History  Eng.  Law,  242. 

« See  The  Law's  Delay. 


478  THE  LAW  IN  SHAKESPEARE. 

2  Clo.  I  tell  thee,  she  is;  therefore,  make  her  grave 
straight:  the  crowner  hath  set  on  her,  and  finds  it 
Christian  burial. 

1  Clo.     How  can  that  be,  unless  she  drowned  herself  in 

her  own  defence? 

2  Clo.     Why,  'tis  found  so. 

1  Clo.     It  must  be  se  offendendo;  it  cannot  be  else.     For 

here  lies  the  point:  If  I  drown  myself  wittingly,  it 
argues  an  act;  and  an  act  hath  three  branches;  it  is, 
to  act,  to  do,  and  to  perform;  Aggal,  she  drowned 
herself  wittingly. 

2  Clo.     Nay,  but  hear  you,  good  man  delver. 

1  Clo.     Give  me  leave.     Here  lies  the  water;  good;  here 

stands  the  man;  good;  if  the  man  go  to  this  water 
and  drown  himself,  it  is,  will  he,  nill  he,  he  goes; 
mark  you  that:  but  if  the  water  come  to  him,  and 
drown  him,  he  drowns  not  himself:  Argal,  he,  that 
is  not  guilty  of  his  own  death,  shortens  not  his 
own  life. 

2  Clo.     But  is  this  law? 

1  Clo.     Ay,  marry  is't;  crowners-quest  law. 

2  Clo.     Will  you  ha'  the  truth  on't?     If  this  had  not 

been  a  gentlewoman  she  should  have  been  buried 
out  of  Christian  burial."1 

By  the  common  law,,  under  what  was  known  as  felonia 
de  seipso,  as  a  person  committed  felony  in  killing  another, 
so  he  might  commit  felony  in  killing  himself,  and  for 
such  intentional  killing  his  goods  and  lands  were  for- 
feited to  the  crown.2  But  a  madman  or  lunatic  could 
not  commit  a  felony  de  seipso,  unless  the  act  was  com- 
mitted during  a  lucid  interval,  because  no  criminal  intent 
could  be  formed  by  one  unable  to  distinguish  between 
right  and  wrong.3  If  a  person  was  drowned,  the  boat 
out  of  which  he  fell,  was  appraised  and  in  all  cases,  the 
thing  that  was  the  causa  mortis  was  to  be  valued  and  for- 
feited as  a  deodand  to  the  crown.4     If  the  inquisition  did 


1  Hamlet,  Prince  of  Denmark,  Act  V,  Scene  I. 

2 II  Reeve's  History  Eng.  Law,  p.  275. 

3  Bracton,  150;  ante  idem. 

4Bracton,  121,  b,  122;    II  Reeve's  History  Eng.  Law,  p.  276. 


HAMLET.  479 

not  find  it  to  be  intentional,  but  sudden  or  accidental 
death,  however,  the  result  was  otherwise;  the  body  that 
for  intentional  death  was  denied  Christian  burial,  was 
entitled  to  be  buried  and  the  goods  or  lands  of  the  de- 
ceased were  not  forfeited  to  the  Crown.1  In  all  cases 
of  accidental  or  intentional  death,  it  was  the  duty  of  the 
Coroner  to  summon  all  persons  who  knew  anything  of 
the  death  and  investigate  and  determine  as  to  the  cause 
of  the  death.2 

The  first  Clown,  in  the  above,  raises  the  question  of 
the  right  of  the  deceased  to  Christian  burial.  The  other 
Clown  advises  him  that  the  " Crown er,"  meaning  the 
Coroner,  had  investigated  and  decided  that  she  was  so 
entitled.  On  question  again  being  asked,  he  again  refers 
to  the  adjudication  at  the  inquisition.  He  insists  that 
the  death  was  intentional,  because  it  was  knowingly  done, 
and  by  way  of  demonstration  discriminates  between  an 
intentional  and  an  accidental  death  by  drowning,  an 
argument  which  seems  to  convince  the  other  Clown,  as 
he  concludes  that  if  the  deceased  had  not  been  a  person 
of  consequence,  she  would  have  been  denied  Christian 
burial. 

Sec.  475.    Hamlet's  legal  comments  on  the  skull. — 

"Ham.  There's  another:  Why  may  not  that  be  the  scull 
of  a  lawyer?  Where  be  his  quiddits  now,  his  quil- 
lets, his  cases,  his  tenures,  and  his  tricks?  Why  does 
he  suffer  this  rude  knave  now  to  knock  him  about 


1  Ante  idem. 

2 II  Reeve's  History  Eng.   Law,   275,   276. 

As  Dr.  Rolfe  shows,  in  his  excellent  edition  of  Hamlet,  Sir  John 
Hawkins  suspects  that  Shakespeare  intended  in  this  dialogue  be- 
tween the  Clowns,  to  ridicule  a  case  reported  by  Plowden,  in  which 
Sir  James  Hale  had  drowned  himself  in  a  fit  of  insanity  and  the 
discussion  by  the  Court,  in  the  opinion,  was  with  a  view  of  ascer- 
taining if  the  death  was  intentional  or  accidental,  and  the  state- 
ment and  arrangement  of  the  propositions  were  similar  to  those 
presented  by  the  Clown,  in  the  above  lines.  Hales  vs.  Petit,  1 
Plowden,  253. 


480  THE  LAW  IN  SHAKESPEARE. 

the  sconce  with  a  dirty  shovel,  and  will  not  tell 
him  of  his  action  of  battery?  Humph:  This  fellow 
might  be  in's  time,  a  great  buyer  of  land,  with  his 
statutes,  his  recognizances,  his  fines,  his  double  vouch- 
ers, his  recoveries:  Is  this  the  fine  of  his  fines,  and 
the  recovery  of  his  recoveries,  to  have  his  fine  pate 
full  of  fine  dirt?  will  his  vouchers  vouch  him  no 
more  of  his  purchases,  and  double  ones  too,  than  the 
length  and  breadth  of  a  pair  of  indentures?  The 
very  conveyances  of  his  lands  will  hardly  lie  in  this 
box;  and  must  the  inheritor  himself  have  no  more?"1 

While  these  expressions  show  a  great  familiarity  with 
legal  terms  they  are  not  used  as  a  lawyer  would  use  them. 
In  the  first  place,  no  lawyer  indulges  in  such  ridicule 
or  sarcasm  at  the  expense  of  the  members  of  his  own 
profession,  nor  would  he  speak  of  the  subtleties,  frivol- 
ous distinctions,  or  tricks  of  lawyers,  for  he  knows  that 
with  the  average  reputable  lawyer  such  things  do  not 
exist.  Of  course  striking  one's  scull  with  a  shovel, 
would  be  a  battery,  in  case  of  a  living  person  and  the 
term  is  properly  used,  in  this  sense.  By  the  statutes 
merchant,  in  force  in  Shakespeare's  time,  a  debtor  could 
be  compelled  to  acknowledge  the  debt  before  the  chief 
magistrate  of  a  town,  and  not  only  his  person  held  to 
satisfy  the  debt,  but  his  lands,  as  well,  until  the  rents 
and  profits  would  satisfy  the  debt.2  In  the  course  of  time 
these  statutes,  with  the  remedies  by  fine  and  recoveries, 
became  the  ordinary  means  of  acquiring  land  titles,  and 
on  the  breach  of  the  conditions  subsequent,  the  titles 
became  indefeasible.  By  fine  and  recovery,  the  condi- 
tional title  of  a  debtor  proceeded  against  under  the  stat- 
utes merchant,  was  barred  forever,  the  fine  consisting  of 
an  agreement,  ratified  by  the  Court,  acknowledging  all 
equities  as  to  the  land  in  controversy  to  have  been  forever 
determined  and  cut  off,  and  the  recovery  being  the  judg- 
ment of  the  Court,  in  such  fictitious  suit,  forever  barring 

1  Hamlet,  Prince  of  Denmark,  Act  V,  Scene  I. 

2Tiedeman,  R.  P.  (3d  ed.);  Ill  Reeve's  History  Eng.  Law,  134. 


HAMLET.  481 

all  claims  of  the  former  owner  to  the  land.1  By  voucher, 
this  fiction  of  an  absolute  conveyance  was  made  perfect, 
by  the  grantor  going  voluntarily  into  court  and  acknowl- 
edging his  warranty  of  title  to  the  grantee,  after  the  lat- 
ter had  been  fictitiously  evicted.  A  supposed  exchange 
of  land  of  the  grantor  to  the  fictitious  grantee  was  made 
and  the  premises  originally  granted  were  adjudged  the 
absolute  property  of  the  grantee,  and  this  recovery  was 
known  as  a  single  voucher.  By  double  voucher,  the 
same  process  was  repeated,  in  court,  except  that  two  ficti- 
tious tenants  were  substituted,  instead  of  one  and  acknowl- 
edgment was  thus  made  the  more  complete  by  repetition, 
in  this  form,  by  the  original  grantor,  through  this  addi- 
tional voucher.2  While  the  single  voucher  reached  only 
the  present  title  of  the  grantor  and  operated  to  divest 
him,  the  double  voucher  was  held  to  cut  off  all  other 
contingent  or  possible  interests  in  the  land.8  But  as  the 
Poet  concludes,  the  effect  of  all  these  conveyances  is  not 
sufficient  to  vest  the  owner  with  such  a  title  that  he  can 
take  it  with  him  when  he  passes  from  this  life,  but  the 
tenures  and  indentures  are  all  left  behind  at  his  death. 

Sec.  476.    Hamlet's    survivorship    and    disposal   of   the 
crown. 

"Ham.     0,  I  die,  Horatio; 

The  potent  poison  quite  o'er-crows  my  spirit; 
I  cannot  live  to  hear  the  news  from  England: 
But  I  do  prophesy  the  election  lights 
On  Fortinbras;  he  has  my  dying  voice; 
So  tell  him  with  the  occurents,  more  or  less, 
Which  have  solicited, — The  rest  is  silence."4 

It  is  passing  strange,  that  amid  the  stirring  scenes  of 
this  last  act  in  the  tragedy,  even  at  the  deathbed  of  his 

1Tiedeman,   R.    P.    (3d   ed.);     I    Reeve's    History    Eng.    Law, 
340,  416. 

2 1  Bl.  Comm.  238. 

3  III  Reeve's  History  Eng.  Law,  24. 

4  Hamlet,  Prince  of  Denmark,  Act  V,  Scene  II. 


482  THE  LAW  IN  SHAKESPEARE. 

mother,  Hamlet  would  remember  to  dispose  of  the  crown, 
in  a  purely  legal  manner  and  that  the  Poet  would  remem- 
ber to  have  him  survive  the  King,  so  that  the  crown,  in 
law,  would  first  devolve  upon  him.  As  if  remembering 
that  the  crown  must  be  looked  after  and  the  law  provid- 
ing that  there  could  be  no  inter-regnum,  the  Poet  first 
killed  the  king  and  then  the  crown  descended  to  Hamlet, 
and  he,  in  turn,  attempted  to  dispose  of  it  in  favor  of 
Fortinbras.  The  latter  asserts  his  right  to  the  crown  in 
these  words: 

"Let  us  haste  to  hear  it, 
And  call  the  noblest  to  the  audience. 
For  me,  with  sorrow  I  embrace  my  fortune; 
I  have  some  rights  of  memory  in  this  kingdom, 
Which  now  to  claim  my  vantage  doth  invite  me." 

And  to  this  Horatio  replies: 

"Of  that  I  shall  have  also  cause  to  speak, 
And  from  his  mouth  whose  voice  will  draw  on  more."1 

In  other  words,  amid  the  tragic  scenes  of  this  last 
act,  the  Poet  remembers  the  legal  status  of  the  crown  and 
the  necessity  of  disposing  of  it  in  a  proper  and  lawful 
manner  and  he  does  not  sacrifice  this  purely  legal  ques- 
tion, even  for  the  more  stirring  scenes  of  the  closing  act. 


*Act  V,  Scene  II. 

History  does  not  furnish  this  close  to  Hamlet's,  or  as  he  was 
properly  called,  to  Amleth's  career.  Indeed,  modern  historians  of 
Denmark,  claim  that  the  whole  story  of  Hamlet  is  a  myth;  but 
Muller  thinks  there  is  a  substratum  of  fact  to  the  story  and 
according  to  Saxo-Grammaticus,  Amleth,  Prince  of  Jutland,  lived 
in  the  2nd  century,  B.  C,  and  his  father  was  murdered  by  his 
uncle,  who  married  his  mother  and  the  facts  of  his  life  are  almost 
exactly  as  presented  in  the  play. 


CHAPTEE  XXXVII. 

"OTHELLO,  THE  MOOR  OF  VENICE." 

Sec.  477.  Non-suit. 

478.  Duke's  promise  to  redress  Brabantio's  wrong. 

479.  Proof  required  of  Desdemona's  seduction. 

480.  Othello's  election  to  stand  upon  Desdemona's  evidence. 

481.  Sequestration  against  Desdemona. 

482.  Iago  the  cynic  anti-pathetic  criminal. 

483.  Law-days   of   Courts   of    Inquiry. 

484.  Iago's  crime  against  Othello. 

485.  Proof  of  guilt  "beyond  reasonable  doubt." 

486.  False  indictment  on  suborned  testimony. 

Sec.  477.     Nonsuit. — 

"lago.     .     .     .     But  he,   as  loving  his  own  pride  and 
purposes, 
Evades  them,   with   a  bombast  circumstance, 
Horribly  stuff' d  with  epithets  of  war; 
And,  in  conclusion,  nonsuits 
My  mediators."1 

A  non-suit  arises,  in  an  action  at  law,  whenever  the 
plaintiff,  rather  than  finally  submit  his  cause,  either  to 
the  court  or  jury,  dismisses  his  action,  before  the  verdict 
or  judgment  is  rendered.2  Non-suits  are  either  volun- 
tary, as  where  the  plaintiff  absents  himself  in  order  to 
abandon  his  cause,  or  involuntary,  as  where,  because  of 
an  adverse  ruling  of  the  court,  or  because  of  some  defect 
in  the  proceedings,  he  is  compelled  to  dismiss  his  action.3 
The  application  of  the  term  here,  is  not  amiss,  for  con- 
sidering the  solicitation  or  suit  of  the  mediators,  or  citi- 
zens who  sue  for  Iago's  advancement,  as  an  action  at  law, 
Othello,  rather  than  grant  their  prayer,  non-suits  them, 


1  Othello,  the  Moor  of  Venice,  Act  I,  Scene  I. 

2  Bouvier's  Law  Dictionary. 

*  Bliss,  Code  Pleading,  Nonsuits. 

(483) 


484  THE  LAW  IN  SHAKESPEARE. 

or  denies  the  request  and  they  voluntarily  withdraw  the 
application. 

Sec.  478.   Duke's  promise  to  redress  Brabantio 's  wrong.— 

"Duke.     Whoe'er  he  be,  that,  in  this  foul  proceeding, 
Hath  thus  beguil'd  your  daughter  of  herself, 
And  you  of  her,  the  bloody  book  of  law 
You  shall  yourself  read  in  the  bitter  letter, 
After  your  own  sense ;  yea,  though  our  proper  son 
Stood  in  your  action."1 

Brabantio  had  charged  that  his  daughter  had  been 
corrupted  by  medicines  and  witchcraft,  and  the  Duke 
promises,  for  the  redress  of  his  wrong,  to  let  the  injured 
father,  himself,  within  the  limits  of  the  law,  assess  the 
strict  letter  of  the  punishment  against  the  offender,  even 
though  it  be  his  own  son,  who  had  thus  offended.  Pro- 
curing the  seduction  of  an  unmarried  female  by  means 
of  medicines,  or  such  like  means  to  take  away  her  con- 
sent was  equivalent  to  rape  and  was  punished  as  a  felony, 
by  death  of  the  offender  and  while  by  the  statute  of  Ed- 
ward I,  this  punishment  was  assessed  at  the  instance  of 
the  party  injured,  by  a  later  act  the  punishment  was  at 
the  suit  of  the  King  and  the  election  of  the  injured  per- 
son was  thus  taken  away.2  But  the  Duke  recognized  the 
father's  right,  in  this  instance,  to  assess  the  punishment 
the  same  as  though  the  law  permitted  it. 

Sec.  479.    Proof  required  of  Desdemona's  seduction. — 

"Duke.     To  vouch  this,  is  no  proof; 

Without  more  certain  and  more  overt  test, 
Than  these  thin  habits,  and  poor  likelihoods 
Of  modern  seeming,  do  prefer  against  him."3 

Brabantio  had  charged  that  his  daughter  must  have 
been  seduced  by  witchcraft,  medicines  or  some  foul  and 


1  Othello,  the  Moor  of  Venice,  Act  I,  Scene  III. 

2 1  Reeve's  History  Eng.  Law,  p.  461;  II  idem.,  pp.  516,  517. 

"Othello,  the  Moor  of  Venice,  Act  I,  Scene  III. 


OTHELLO.  485 

occult  power,  exerted  by  the  Moor,  but  the  Duke  advises 
him  that  in  law  some  proof  or  "overt  test,"  must  be  pro- 
duced, before  the  presumption  of  innocence  can  be  over- 
come. In  this  the  Duke  only  gave  Othello  the  benefit 
of  the  law,  for  no  one  can  be  convicted  of  crime  on  pre- 
sumptions and  conjectures,  but  proof  of  the  guilt  of  the 
accused  is  always  required.1  The  charge  of  witchcraft 
was  the  charge  of  a  criminal  offense,  during  the  time  of 
Shakespeare,  for  not  only  did  Lord  Hale  recognize  the 
existence  of  such  a  fact,  in  a  judgment  based  upon  expert 
evidence  of  physicians,2  but  by  statute  (5  Elizabeth,  c.  16) 
any  one  practicing  witchcraft,  enchantment,  charm  or 
sorcery,  with  the  intent  to  provoke  anyone  to  unlawful 
love,  was  condemned  to  suffer  imprisonment  and  the 
pillory  and  for  a  second  offence,  to  be  deprived  of  the 
benefit  of  clergy.3 

Sec.  480.     Othello's  election  to  stand  upon  Desdemona's 
evidence.  — 

"Oth.     I  do  beseech  you, 

Send  for  the  lady  to  the  Sagittary, 
And  let  her  speak  of  me  before  her  father: 
If  you  do  find  me  foul  in  her  report, 
The  trust,  the  office,  I  do  hold  of  you, 
Not  only  take  away,  but  let  your  sentence 
Even  fall  upon  my  life."4 

Brabantio's  charge  against  Othello  that  he  had  seduced 
his  daughter,  by  medicines  or  witchcraft,  amounted  in 
law  to  rape  and  for  this  crime  the  accused,  on  conviction, 
was  punishable  by  death.5  But  by  the  practice  which 
obtained  on  the  trial  of  such  offenses,  in  the  time  of 


1V  Reeve's  History  Eng.  Law,  312,  et  sub. 

2  Strickland,  Evid.,  408;   2  M.  &  M„  75;   3  Dougl.,  157. 

3V  Reeve's  History  Eng.  Law,  p.  349. 

4  Othello,  the  Moor  of  Venice,  Act  I,  Scene  III. 

6 II  Reeve's  History  Eng.  Law,  516,  517. 


486  THE  LAW  IN  SHAKESPEARE. 

Shakespeare,  if  the  accused  elected  so  to  do,  he  had  the 
right  to  stand  upon  the  evidence  of  the  "woman  in  the 
case/'  or,  as  expressed  by  Glanville,  "it  was  in  the  elec- 
tion of  the  person  accused,  either  to  submit  to  the  burden 
of  making  purgation,  or  leave  it  upon  the  evidence  of  the 
woman  herself."1  So  it  seems  in  leaving  the  issue  of  his 
guilt  to  Desdemona's  evidence,  the  Moor  invoked  his  legal 
right  and  that  he  made  no  mistake,  in  this  course,  is 
demonstrated  by  the  testimony  given  by  Desdemona, 
which  effectually  acquitted  him  of  the  charge. 

Sec.  481.    Sequestration  against  Desdemona. — 

"lago.  ...  It  cannot  be,  that  Desdemona  should 
long  continue  her  love  to  the  Moor, — put  money  in 
thy  purse ; — nor  he  his  to  her ;  it  was  a  violent  com- 
mencement, and  thou  shalt  see  an  answerable  seques- 
tration."2 

In  English  law,  sequestration  is  the  process  by  which 
the  creditor  of  a  clergyman  sues  out  an  execution  on  his 
judgment  and  obtains  payment  of  his  debt.3  In  ordi- 
nary judgments  against  laymen,  a  levy  is  made  upon  the 
real  estate  or  personal  property  of  the  debtor  and  same 
is  sold  to  satisfy  the  debt ;  but  in  the  case  of  a  clergyman, 
the  bishop  puts  in  force  the  law;  sequestrators  are  ap- 
pointed by  him  to  take  possession  of  the  benefice,  and  to 
draw  the  emoluments,  after  due  provision  for  the  contin- 
nance  of  the  divine  worship. 

Iago  thus  appoints  himself  the  bishop  to  undertake  the 
sequestration  of  the  object  of  the  Moor's  worship,  which 
he  promises,  by  innuendo,  to  let  Roderigo  enjoy,  by 
means  of  this  legal  process,  which  he  will  inaugurate  for 
his   benefit. 


Glanville,  lib.  14,  c.  6;  V  Reeve's  History  Eng.  Law,  p.  462. 
2  Othello,  the  Moor  of  Venice,  Act  I,  Scene  III. 
^Bouvier's  Law  Dictionary. 


OTHELLO.  487 

Sec.  482.    Iago  the  cynic  antipathetic  criminal. — 

"lago.  ...  I  have  told  thee  often,  and  I  re-tell  thee 
again  and  again,  I  hate  the  Moor:  My  cause  is 
hearted:  thine  hath  no  less  reason:  Let  us  be  con- 
junctive in  our  revenge  against  him:  if  thou  can'st 
cuckold  him,  thou  dost  thyself  a  pleasure,  and  me  a 
sport.  There  are  many  events  in  the  womb  of  time, 
which  will  be  delivered."1 

Speaking  of  Iago  as  the  antipathetic  cynic,  in  crime, 
Goll  says :  "In  his  utterly  coarse,  ice-cold  heart  lives  only 
the  soul  of  his  own  selfishness.  What  he  understands  is 
the  selfishness  of  others,  what  he  does  not  understand  is 
self-sacrifice.  And,  as  he  does  not  understand  it,  he 
denies  it;  and,  not  only  does  he  deny  it — he  hates  it, 
because  it  is  diametrically  opposed  to  his  own  nature:  he 
hates  it  because,  if  he  recognized  it,  he  must  hate  himself, 
and  he  cannot  hate  himself;  if  he  could,  he  would  not  be 
the  egoist  he  is.  In  the  desert  of  his  heart  is  raised  a 
tower,  wherein  sits  the  mephistopheles  of  his  egoism,  who, 
with  burning,  scorching  eyes,  watches  the  ways  of  men. 
Wherever  he  sees  active  the  spirit  of  dissension,  hatred, 
anger,  destruction,  his  heart  expands.  Wherever  he  sees 
goodness,  forbearance,  love,  and  happiness,  his  heart  con- 
tracts: and  wherever  he  can,  he  chops  the  head  off  each 
of  them,  that  it  may  never  blossom  again.  He  does  not 
even  covet  what  one  hates.  The  mold  of  civilization  has 
never  spread  itself  on  the  stony  ground  of  his  heart.  Na- 
ture's barren  rock,  hard  and  cold  and  grey,  whereon  only 
the  very  lowest  forms  of  life  may  thrive,  shows  itself  there. 
For  him,  therefore,  only  the  life  he  sees  is  real,  true, 
genuine :  the  life  of  civilization  a  detested  sham.  And,  as 
he  hates  this  life,  he  also  hates  all  the  qualities  on  which 
it  is  based,  all  that  which,  for  humanity,  is  the  bearer  and 
upholder  of  civilization.     To  these  cynics  Iago  belongs."2 

1  Othello,  the  Moor  of  Venice,  Act  I,  Scene  III. 
2GoH's  Criminal  Types  in  Shakespeare,  223,  225.     Speaking  of 
the  character  of  Iago,  this  author  elsewhere  says:     "In  Iago  we 


488  THE  LAW  IN  SHAKESPEARE. 

Sec.  483.    Law-days  of  courts  of  inquiry. — 

"lago.     .     .     where's  that  palace,  where  into  foul  things 
Sometimes  intrude  not?  who  has  a. breast  so  pure, 
But  some  uncleanly  apprehensions 
Keep  leets,  and  law  days,  and  in  session  sit 
With  meditations  lawful?"1 


have  another  type  of  the  criminal  by  instinct,  whose  motive  is  the 
lust  of  destruction.  He  aspires  not  himself,  to  become  possessed 
of  the  treasure,  but  to  rob  the  possessor  of  his  enjoyment  of  it,  to 
destroy  it  for  him,  to  kill  his  joy  in  it."  (Goll's  Criminal  Types  in 
Shakespeare,  p.  206.) 

Explaining  the  reason  for  Iago's  hatred  for  his  patron,  the 
Moor,  and  his  motive  for  his  criminal  conduct,  Goll  says:  "The 
despised  'thick-lips'  thus,  suddenly,  by  the  chance  of  fate,  becomes 
a  powerful  and,  what  is  much  worse,  a  happy  man.  Iago's  star 
grows  dim:  Othello's  love-messenger,  Cassio,  gets  the  lieutenancy. 
Thus  it  becomes  clear  that  lago  no  longer  is  number  one,  his  part 
is  almost  played  out:  the  Moor  can  stand  on  his  own  legs;  he 
has  won  new  powerful  friends,  who  can  assist  him  to  a  much 
greater  extent  than  lago.  He  can  now  follow  his  own  proud  and 
happy  road,  without  lago  as  master.  Upon  that  event  vanishes, 
as  if  by  magic,  all  Iago's  good-will — or  rather,  lack  of  ill-will — 
for  the  Moor.  So  long  as  lago  is  able  to  play  the  great  and 
superior  person,  he  can  pass  for  a  friend.  When  he  becomes  the 
lesser  and  inferior  he  is  at  once  turned  into  an  irreconcilable 
enemy.  Othello  has  reached  an  elevated  position,  and  what  is 
thus  elevated  lago  must  tear  down;  where  there  is  human  peace 
and  happiness,  lago  must  sow  strife  and  unhappiness:  that  is  the 
desire  of  his  heart;  therefore  the  happiness  of  the  Moor  must  be 
ruined.  But  to  this  common  motive  of  rancour  and  envy  is  allied 
another  special  motive,  which  Shakespeare  has  certainly  hidden 
deep  down  in  the  drama,  yet  no  further  than  it  may  be  found;  a 
motive  which  indicates  the  deepest  abyss  of  the  human  soul." 
This  gifted  criminologist  then  proceeds  to  show  that  the  cohabita- 
tion of  Othello  with  Desdemona  and  his  resulting  happiness  is  the 
mainspring  which  arouses  all  the  erotically  coloured  envy  of  lago, 
and  with  his  natural  lust  for  cruelty,  this  gives  him  the  impulse  to 
destroy  all  concerned  in  the  happy  state  that  he  sees  around  him, 
because  he  cannot  enter  the  charmed  circle.  (Goll's  Criminal 
Types  in  Shakespeare,  pp.  228,  229,  237,  239.) 

1  Othello,  the  Moor  of  Venice,  Act  III,  Scene  III. 


OTHELLO.  489 

In  instigating  the  jealousy  of  the  Moor,  Iago  in  these 
lines,  likens  the  human  mind  to  a  palace,  wherein  courts 
of  inquiry  are  held,  on  proper  law  days,1  at  regular  ses- 
sions of  such  courts,  meditations  are  had  upon  causes 
not  as  pure  as  those  that  ought  to  occupy  the  mind. 

Iago  has  now  commenced  to  work  toward  his  aim.  In 
the  great  scene  wherein  the  Poet,  with  the  master's  hand — 
as  if  familiar  with  the  known  depths  of  the  abyss  into 
which  Iago  enters  and  all  the  psychological  reasons  that 
prompt  him  to  action — portrays  how  consummately  Iago 
works  upon  the  mind  of  Othello  until  he  puts  the  Moor 

"At  least  into  a  jealousy  so  strong 
That  judgment  cannot  cure," 

and  then  he  is  happy,  in  the  realization  of  the  crime,  to 
which  his  natural  erotic  lust  of  cruelty  and  envy  has 
led  him. 

Sec.  484.    Iago's  crime  against  Othello. — 

"Iago.     .     .     .     Look  to  your  wife;  observe  her  well  with 
Cassio, 
Wear  your  eye — thus,  not  jealous,  nor  secure: 
I  would  not  have  your  free  and  noble  nature, 
Out  of  self-bounty,   be   abus'd;   look  to't: 
I  know  our  country  disposition  well; 
In  Venice  they  do  let  heaven  see  the  pranks 
They  dare  not  show  their  husbands ;  their  best  con- 
science 
Is  not  to  leave  undone,  but  keep  unknown. 

Oth.     Dost  thou  say  so? 

Iago.     She  did  deceive  her  father,  marrying  you; 

And,  when  she  seem'd  to  shake,  and  fear  your  looks, 
She  lov'd  them  most. 

Oth.     And  so  she  did. 

Iago.     Why,  go  to,  then; 

She  that,  so  young,  could  give  out  such  a  seeming, 
To  seel  her  father's  eyes  up,  close  as  oak, — 


aCourt-leet  is  the  oldest  court  with  criminal  jurisdiction;  it  was 
a  court  of  record  and  had  power  similar  to  that  of  the  Sheriffs 
tourn  in  the  county.     Dyer,  30b;    4  Bl.  Comm.   273. 


490  THE  LAW  IN  SHAKESPEARE. 

He  thought,  'twas  witchcraft: — But  I  am  much  to 

blame ; 
I  humbly  do  beseech  you  of  your  pardon, 
For  too  much  loving  you. 
Oth.     I  am  bound  to  thee  forever."1 

In  thus  destroying,  for  all  time,  his  faith  in  his  wife, 
Iago  here  commits  the  greatest  crime  that  he  could  against 
Othello,  for  as  his  love  for  Desdemona  exceeded  all  else 
on  earth,  the  act  of  Iago  in  breaking  his  faith  in  her, 
destroyed  his  happiness  forever.  Breach  of  faith  is  always 
the  real  basis  of  crime  and  as  the  effect  of  such  loss  of 
faith  is  the  more  far  reaching,  nothing  could  have  been 
more  cruel  toward  Othello  than  this  awakening  of  his 
jealousy  for  his  wife,  for  this  was  the  ruling  passion  of 
his  life.  When  the  power  or  possibility  of  confidence  in 
humanity  is  killed,  society  itself  is  impossible,  and  as 
Othello's  whole  life  was  bound  up  in  Desdemona,  when 
his  confidence  in  her  was  gone,  his  life  was  wrecked. 
This  was  the  deliberate  aim  of  Iago  and  hence  shows  the 
greater  criminal  instinct  which  he  possessed.  As  ob- 
served by  Goll,2  "if  humanity  itself  had  occupied  the  place 
of  Othello,  then  Iago  would  be  the  greatest  criminal  in 
the  world,"  for  while  Brutus  killed  because  of  the  exalted 
motive  which  placed  the  welfare  of  his  fellows  above  his 
own,  Iago  worked  to  accomplish  the  destruction  of  all 
about  him,  from  the  mere  lust  of  cruelty  and  envy.  And 
thus  the  motives  of  the  "creatures  of  crime,"  as  pre- 
sented by  the  immortal  genius  of  Shakespeare,  can  be 
best  understood  with  the  help  of  the  scientist  in  crim- 
inology. 

Sec.  485.    Proof  of  guilt  beyond  reasonable  doubt. — 

"Oth.     Villain,  be  sure  thou  prove  my  love  a  whore; 
Be  sure  of  it,  give  me  the  ocular  proof; 


1  Othello,  the  Moor  of  Venice,  Act  III,  Scene  III. 

2  Goll's  Criminal  Types  in  Shakespeare,  257,  258. 


OTHELLO.  491 

Make  me  to  see  it;  or  (at  the  least)  so  prove  it, 
That  the  probation  bear  no  hinge,  nor  loop, 
To  hang  a  doubt  on :  or,  wo  upon  thy  life."1 

Othello,  in  these  lines,  demands  proof  of  the  guilt  of 
Desdemona  "beyond  a  reasonable  doubt."  This  is  the 
degree  of  proof  that  the  law  always  accords  one  accused 
of  crime  and  in  demanding  proof  of  her  guilt  to  this 
extent,  the  Poet  made  him  merely  stand  for  her  legal 
rights.2  A  presumption  of  innocence  surrounds  all  those 
accused  of  crime,  however  hardened  the  criminal  may  be, 
and  when  this  rule  of  evidence  would  be  extended  to  those 
accused  of  the  vilest  crimes,  Othello  did  not  ask  too 
much  for  the  poor  innocent  wife  of  his  bosom,  in  invok- 
ing this  common  rule  of  evidence.3  In  every  trial  of 
one  accused  of  crime,  the  court  instructs  the  jury  that  if 
they  have  "a  reasonable  doubt"  of  the  guilt  of  the 
accused,  they  should  acquit,  or,  in  other  words,  the  prose- 
cution must  "so  prove  it, 

That  the  probation  bear  no  hinge,  nor  loop, 
To  hang  a  doubt  on," 

or  the  proof  of  the  crime  is  not  legally  established. 

Sec.  486.    False  indictment  on  suborned  testimony. — 

"Des.     .     .     .     Beshrew  me  much,  Emilia, 
I  was,  (unhandsome  warrior  as  I  am,) 
Arraigning  his  unkindness  with  my  soul, 
But  now,  I  find,  I  had  suborn'd  the  witness, 
And  he's  indicted  falsely."4 

Shakespeare  here  makes  Desdemona  speak  in  the  lan- 
guage of  the  law,  with  the  precision  of  an  experienced 
barrister.  As  it  is  always  a  preliminary  to  a  trial  for 
crime,  to  arraign  the  accused,  she  was  "arraigning  his 


1  Othello,  the  Moor  of  Venice,  Act  III,  Scene  III. 

2  Sherwood's  Criminal  Law;  Bishop's  Criminal  Law. 

3  Greenleaf  on  Evidence. 

*  Othello,  the  Moor  of  Venice,  Act  III,  Scene  IV. 


492  THE  LAW  IN  SHAKESPEARE. 

unkindness,"  with  her  soul  giving  evidence  against  him. 
An  indictment  is  the  written  accusation  of  crime  against 
a  person,  and  upon  which  he  is  tried  by  a  jury.1  The 
indictment  is  generally  returned  by  a  grand-jury,  upon 
the  sworn  evidence  of  one  or  more  witnesses.  Of  course, 
if  the  witness  was  "suborned,"  or  procured  to  swear  falsely, 
the  indictment  would  be  a  false  charge.  So,  after  rea- 
soning over  Othello's  unkindness,  charged  as  he  was  by 
her  soul,  Desdemona's  supreme  love  acquitted  him,  even 
to  the  discredit  of  her  own  soul,  whose  evidence  she  dis- 
carded because  of  her  belief  in  him.  It  is  a  beautiful 
presentation  of  her  love  and  trust,  and  the  contrast  is 
the  more  noticeable,  because  of  Othello's  lack  of  confidence 
in  her. 


1  Bishop's  Criminal  Procedure;   4  Bl.  Comm.  302. 


CHAPTER  XXXVIII. 

"VENUS  AND  ADONIS." 

Sec.  487.  Judge  cannot  right  his  own  cause. 

488.  Law-giver  unable  to  enforce  Law. 

489.  Client  wrecked,  when  attorney  mute. 

490.  Conveyance  by  seal-manual. 

491.  Double  penalty  upon  broken  bond. 

492.  Inheritance  by  next  of  blood. 

Sec.  487.    Judge  cannot  right  his  own  cause. — 

".     .     .  impatience  chokes  her  pleading  tongue, 

And  swelling  passion  doth  provoke  a  pause; 
Red  cheeks  and  fiery  eyes  blaze  forth  her  wrong ; 
Being  judge  in  love,  she  cannot  right  her  cause: 
And  now  she  weeps,  and  now  she  fain  would  speak, 
And  now  her  sobs  do  her  intendments  break."1 

The  Roman  goddess  of  love  is  here  represented  in  the 
attitude  of  a  judge,  who,  because  of  this  position,  could 
not  decide  the  issue  between  herself  and  Adonis  in  her 
own  favor,  since  a  judge  cannot  adjudicate  in  his  own 
cause.  It  is  somewhat  remarkable  that  even  in  delineat- 
ing the  tender  passion  and  while  describing  the  mad  pas- 
sion of  the  "divine  mother  of  the  Roman  people,"  the 
Poet  should  use  legal  phrases,  or  resort  to  judicial  refer- 
ence to  illustrate  his  thoughts. 

Sec.  488.    Law-giver  unable  to  enforce  law. — 

"Poor  queen  of  love,  in  thine  own  law  forlorn, 
To  love  a  cheek  that  smiles*  at  thee  in  scorn."2 

This  verse  does  not  alone  present  the  sad  picture  of  the 
goddess  of  love  in  her  total  inability  to  arouse  even  a 
spark  of  affection  in  the  object  of  her  passion,  but  it  does 

1  Venus  and  Adonis,  217,  222. 

2  Venus  and  Adonis,  251,  252. 

(493) 


494  THE  LAW  IN  SHAKESPEARE. 

far  more.  In  these  two  brief  lines,  Venus,  the  goddess 
of  love  is  represented  as  the  law-giver  in  this  greater  than 
human  law,  in  the  pitiable  condition  of  being  unable  to 
embrace  the  law  she  gives  the  world.  While  giving  love 
to  the  world  it  would  indeed  be  forlorn  for  the  queen  of 
love  to  bestow  her  affection  upon  one  who  smiled  at  her 
in  scorn. 

Sec.  489.    Client  wrecked,  when  attorney  mute. — 

"An  oven  that  is  stopp'd,  or  river  stay'd, 
Burneth  more  hotly,  swelleth  with  more  rage: 
So  of  concealed  sorrow  may  be  said; 
Free  vent  of  words  of  love's  fire  doth  assuage ; 
But  when  the  heart's  attorney  once  is  mute, 
The  client  breaks,  as  desperate  in  his  suit."1 

The  heart  is  here  placed  in  the  attitude  of  a  client  of 
the  tongue,  whose  cause  must  be  represented  by  the  latter, 
as  such  attorney.  Of  course  if  the  attorney,  whose  busi- 
ness is  to  speak  in  the  interest  of  his  client's  cause, 
remained  mute,  when  he  should  have  spoken,  the  rights 
of  the  client  would  suffer  correspondingly  and  the  suit 
would  be  in  a  desperate  strait. 

Sec.  490.    Conveyance  by  seal-manual. — 

"  'Pure  lips,  sweet  seals  in  my  soft  lips  imprinted, 
What  bargains  may  I  make,  still  to  be  sealing? 
To  sell  myself  I  can  be  well  contented, 
So  thou  wilt  buy,  and  pay,  and  use  good  dealing; 
Which  purchase,  if  thou  make,  for  fear  of  slips, 
Set  thy  seal-manual  on  my  wax-red  lips."2 

In  the  time  of  the  Poet  the  custom  of  sealing  all  bar- 
gains was  given  far  more  prominence  in  the  law  than 
to-day,  when  seals  have  been  abolished  by  the  statutes 
of  many  countries.      Seals  were  then  a  pre-requisite  to 


1  Venue  and  Adonis,  331,  336. 

2  Venus  and  Adonis,  511,  516. 


VENUS  AND  ADONIS.  495 

all  bargains  and  sales  of  land  or  other  instruments  for 
the  conveyance  of  land.1  Most  individuals  had  their  own 
private  seals  and  deeds  were  made  with  seals-manual  and 
impressions  of  wax,  and  these  formulas  were  indispensable 
to  the  validity  of  such  written  contracts. 

So  the  art  of  kissing  is  likened  to  the  old  practice  of 
sealing  such  contracts,  where  the  lips  of  Adonis  were 
referred  to  as  the  seal  to  be  imprinted  in  the  waxen  lips 
of  the  goddess,  Venus.  A  deed  under  the  sign-manual  of 
the  king,  such  as  were  annexed  to  letters  patent,  carried 
absolute  verity  and  as  the  existence  of  such  an  instrument 
could  not  be  questioned,  Venus  pleads  for  such  a  substan- 
tial recognition  of  her  claims. 

Sec.  491.    Double  penalty  upon  broken  bond. — 

"A  thousand  kisses  buys  my  heart  from  me; 
And  pay  them  at  thy  leisure,  one  by  one. 
What  is  ten  hundred  touches  unto  thee? 
Are  they  not  quickly  told  and  quickly  gone? 
Say,  for  non-payment  that  the  debt  should  double, 
Is  twenty  hundred  kisses  such  a  trouble?"2 

The  goddess  of  Love  in  these  lines  offers  to  sell  her 
heart  for  one  thousand  kisses,  on  time,  under  a  bond  con- 
ditioned for  the  payment,  in  kind,  by  Adonis,  at  his  leis- 
uer,  one  by  one.  She  urges  him  to  the  contract  that  pay- 
ing them  in  this  way  he  is  out  nothing,  but  ten  hundred 


1 II  Reeve's  History  Eng.  Law,  54. 

In  explaining  how  he  was  able  to  counterfeit  the  King's  seal,  in 
forging  new  orders  to  the  English,  as  regards  Rosencrantz  and 
Gildenstern,  Hamlet  explains  to  Horatio  that 
"I  had  my  father's  signet  in  my  purse, 
Which  was  the  model  of  that  Danish  seal: 
Folded  the  writ  up  in  form  of  the  other; 
Subscribed  it,  gave  the  impression;   plac'd  it  safely, 
The  changeling  never  known."  (Act  V,  Scene  II.) 

•Venus  and  Adonis,  517,  522. 


496  THE  LAW  IN  SHAKESPEARE. 

touches.  Like  the  pleasurable  thoughts  we  think  they  are 
quickly  told  and  gone.  Then  she  conditions  that  if  he 
fail  to  pay,  as  agreed,  the  penalty  of  the  bond  shall  be 
doubled — as  the  obligations  of  such  nature  usually  run, 
at  common  law1 — and  consoles  him  with  the  reflection 
that  this  double  penalty  in  case  of  breach  of  the  obliga- 
tion assumed,  would  not  be  very  hard  on  him  to  pay,  in 
any  event.  This  whole  proposition  and  reasoning  is  a 
legal  offer  and  statement  of  the  effect  of  the  breach  of 
the  proposal  to  contract  on  the  terms  stated  by  the  Roman 
goddess  of  Love. 

Sec.  492.    Inheritance  by  next  of  blood. — 

"Here  was  thy  father's  bed,  here  in  my  breast; 
Thou  art  the  next  of  blood,  and  'tis  thy  right."2 

Adonis'  birth-right  is  placed  as  it  would  be,  in  law,  in 
case  of  the  descent  of  real  estate,  wherein  the  law  would 
devolve  the  title  on  the  first-born,  or  "next  of  blood." 
In  other  words,  the  goddess  of  love,  goes  further  back  than 
in  mere  recognition  of  the  right  of  Adonis,  but  character- 
izes his  right  as  that  of  descent,  through  his  own  father, 
who  had  enjoyed  the  right  before  him.  A  right  by 
inheritance  is  the  best  title  known  to  the  law  and  this 
title  only  devolves  upon  the  "next  of  blood,"  so  the  recog- 
nition of  the  right,  on  Adonis'  part,  could  not  have  been 
by  better  title.3 


aLawson,  on  Contracts    (3d  ed.). 
2  Venus  and  Adonis,  1183,  1184. 
3Tiedeman,  R.  P.   (3d  ed.). 


CHAPTER  XXXIX. 

"THE  RAPE  OF  LUCRECE." 

Sec.  493.  Loving  against  Law  and  Duty. 

494.  Pleading  for  right,  in  wilderness  without  Law. 

495.  Holy  human  Law. 

496.  Attestation  by  Notary. 

497.  The  assault  upon  Lucrece. 

498.  Opportunity  spurns  Right  and  Law. 

499.  Justice  feasting,  while  widow  weeps. 

500.  Errors  by  opinion  bred. 

501.  Wronger  wronged  by  Time. 

502.  Case  past  help  of  Law. 

503.  Rightful  plea  for  Justice— Denial  of. 

Sec.  493.    Loving  against  law  and  duty. — 

"I  know  what  thorns  the  growing  rose  defends; 
I  think  the  honey  guarded  with  a  sting; 
All  this  beforehand  counsel  comprehends: 
But  will  is  deaf  and  hears  no  heedful  friends; 
Only  he  hath  an  eye  to  gaze  on  beauty, 
And  dotes  on  what  he  looks,  'gainst  law  or  duty."1 

Contemplating  the  crosses  that  his  attempt  upon  Lucrece 
will  bring,  Tarquin  places  his  will  in  the  attitude  of  a 
client,  taking  counsel  from  an  adviser.  His  better  judg- 
ment, before  the  deed,  counsels  his  will  to  refrain  from 
such  a  slaughter  of  another's  right.  But  his  will  is  deaf 
to  the  appeal  of  his  counsel,  and,  with  an  eye  sole  to  the 
beauty  of  Lucrece,  like  the  thief,  who  would  possess  what 
he  longs  for,  regardless  of  the  infraction  of  another's 
rights,  he  adotes  on  what  he  looks,  'gainst  law  or  duty." 

Sec.  494.    Pleading    for    right,    in    wilderness    without 
law.  — 

"While  she,  the  pictureof  true  piety, 
Like  a  white  hind,  under  the  gripe's  sharp  claws, 

1  The  Rape  of  Lucrece,  492,  497. 

(497) 


498  THE  LAW  IN  SHAKESPEARE. 

Pleads,  in  a  wilderness  where  are  no  laws, 

To  the  rough  beast  that  knows  no  gentle  righ> 

Nor  aught  obeys  but  his  foul  appetite."1 

It  is  passing  strange  that  the  Poet,  even  in  describing 
the  distress  of  Lucrece,  in  her  effort  to  avoid  the  lust  of 
the  debased  Tarquin,  would  think  of  legal  illustrations 
to  express  her  anguish.  In  a  wilderness  without  law,  it 
would  of  course  be  unavailing  to  plead  to  a  beast  who 
knew  no  law,  except  his  own  foul  appetite,  for  the  recog- 
nition of  the  "gentle  right,"  since  the  right  is  recognized 
only  where  the  law  abides.  Like  the  frail  beast  which  is 
powerless  in  the  embrace  of  the  mighty  one  that  hunger 
leads  by  natural  law  to  destroy  the  weaker,  the  poor 
Lucrece  is  powerless  in  her  pleading,  for  the  recognition 
of  the  right  can  find  no  lodging  place  in  a  bosom  as 
debased  as  that  of  Tarquin.  The  adherence  to  the  rules 
of  conduct  prescribed  for  the  recognition  of  the  others' 
rights,  and  the  use  of  our  own  in  such  manner  as  not  to 
cause  injury  to  others  in  their  own,  is  what  distinguishes 
civilized  man  from  the  beasts  of  the  wilderness  who  know 
no  law,  but  that  of  the  claw  and  fang;  and  to  this  latter 
class  is  Tarquin  properly  likened. 

Sec.  495.    Holy  human  law. — 

"She  conjures  him  by  high  almighty  Jove, 
By  knighthood,  gentry,  and  sweet  friendship's  oath, 
By  her  untimely  tears,  her  husband's  love, 
By  holy  human  law  and  common  troth 
By  heaven  and  earth  and  all  the  power  of  both, 
That  to  his  borrow'd  bed  he  make  retire, 
And  stoop  to  honor,  not  to  foul  desire."2 

The  veneration  for  law,  which  this  verse  evidences,  is 
characteristic  of  the  great  Shakespeare,  at  all  times.  Ap- 
pealing first,  in  the  name  of  the  great  Jove,  then  to  his 
chivalry,  his  family,  the  friendship  of  her  husband,  her 


JThe  Rape  of  Lucrece,  542,  546. 
3  The  Rape  of  Lucrece,  568,  574. 


RAPE  OF  LUCRECE.  499 

own  tears,  and  her  husband's  love,  as  a  final  appeal,  she 
places  her  right  to  exemption  from  his  lecherous  embrace, 
upon  the  "holy  human  law,"  which,  in  all  civilized  coun- 
tries, protects  the  husband's  right  to  the  affection  and 
society  of  his  wife.  Upon  this  protection  of  the  home 
the  strongest  laws  of  society  are  based,  for  without  pro- 
tection of  the  domestic  relations,  mankind  becomes  but 
little  better  than  beasts  of  the  field.  The  law  so  far  pro- 
tects the  happiness  and  sacredness  of  the  home  that  any- 
one who  destroys  such  happiness  is  both  civilly  and  crim- 
inally liable  and  to  such  an  extent  is  the  society  of  the 
wife  recognized,  as  a  property  right  of  the  husband,  that 
for  any  alienation  of  her  affection,  he  is  given  a  cause 
of  action,  at  law.1 

Sec.  496.    Attestation  by  notary. — 

"0  comfort-killing  Night,  image  of  hell: 
Dim  register  and  notary  of  shame."2 

A  notary  is  an  officer  known  to  the  civil  law  of  Rome 
as  tabellio  forensis.3  In  England  this  officer  was  ap- 
pointed by  the  archbishop  of  Canterbury  and  his  duties 
were  to  take  and  administer  oaths  and  affirmations;  to 
attest  the  execution  of  legal  instruments  and  certify  to 
contracts  and  other  documents  generally. 

Frantic  with  grief,  Lucreco  expresses  her  spite,  and 
compares  the  night  of  her  undoing  to  a  notary,  which 
with  seal  and  commission  attested  or  bore  witness  to  her 
shame,  so  that  it  would  be  known  to  all  men.  It  is  a 
pitiful  scene  which  the  Poet  depicts  in  this  and  succeed- 
ing verses,  by  comparing  night  to  this  somber  officer  of 
the  law,  responsible  for  the  "cureless  crime"  against 
Lucrece. 


1  Schouler's  Domestic  Relations. 

2  The  Rape  of  Lucrece,  764,  765. 
3Bouvier's  Law  Dictionary. 


500  THE    LAW   IN   SHAKESPEARE. 

Sec.  497.    The  assault  upon  Lucrece. — 

"If,  Collatine,  thine  honor  lay  in  me, 
From  me  by  strong  assault,  it  is  bereft."1 

An  assault  is  an  attempt  to  inflict  bodily  injury  upon 
another,  coupled  with  a  present  intent  to  carry  such 
attempt  into  execution.2  Battery  is  the  consummation  of 
the  assault,  or  the  actual  infliction  of  threatened  violence.3 

Assaults  with  the  intent  to  commit  a  rape,  such  as  the 
assault  by  Tarquin  upon  Lucrece,  in  the  domain  of  crim- 
inal law,  are  known  as  the  most  aggravated  forms  of 
assault,  and  are  followed  by  the  most  severe  punishment. 
In  other  words,  as  reflected  by  the  wronged  Lucrece,  her 
husband's  honor  was  bereft  of  her  by  "strong  assault," 
but  it  is  strange  that  the  Poet  would  have  this  wronged 
woman  bewail  her  fate  in  the  use  of  such  legal  terms. 


Sec.  498.     Opportunity  spurns  right  and  law. — 

"Opportunity,  thy  guilt  is  great: 
'Tis  thou  that  executest  the  traitor's  treason ; 
Thou  set'st  the  wolf  where  he  the  lamb  may  get ; 
Whoever  plots  the  sin,  thou  point'st  the  season; 
'Tis  thou  that  spurn 'st  at  right,  at  law,  at  reason ; 
And  in  thy  shady  cell,  where  none  may  spy  him, 
Sits  Sin,  to  seize  the  souls  that  wander  by  him."4 

This  personification  of  Opportunity,  as  the  accessory 
to  treason  and  the  executor  of  such  dire  crimes,  as  to 
render  the  guilt  of  Opportunity  so  apparent,  is  of  course 
a  forced  conclusion,  to  carry  out  the  idea  of  the  Poet's 
thoughts,  for  the  same  reasoning  could  be  urged  to  show 
that  Opportunity  was  the  blessing  of  the  innocent  and 
the  means  of  obtaining  and  carrying  out  philanthropy, 
charity  and  beneficence.      But  of  course  in  the  way  in 


aThe  Rape  of  Lucrece,  834,   835. 
2Cooley  on  Torts. 

3  Ante  idem.     Bouvier's  Law  Dictionary. 

4  The  Rape  of  Lucrece,  876,  882. 


RAPE  OF  LUCRECE.,  501 

which  it  is  used  the  word  is  susceptible  of  the  construc- 
tion and  meaning  given  it  by  Shakespeare,  for  those  who 
plan  crime,  must  await  the  opportunity  to  carry  it  out 
and  embracing  the  opportunity  to  commit  crime,  of  course 
does  constitute  opportunity,  as  the  means  by  which  it  is 
accomplished,  in  part  responsible  for  the  crime  commit- 
ted, so  in  this  sense  it  can  be  said  to  spurn  "at  right,  at 
law,  at  reason."  But  the  thought  that  Sin,  sitting  in  the 
shady  cell  of  Opportunity,  awaiting  to  "seize  the  souls 
that  wander  by  him,"  so  links  up  Opportunity  with  Sin, 
in  furnishing  an  abiding  place  and  harboring  him,  that 
this  use  of  the  word  can  only  be  justified  under  the  plea 
of  poetic  license,  or  the  diseased  reflections  of  the  wronged 
Lucrece.1 

Sec.  499.    Justice  feasting  while  widow  weeps. — 

"The  patient  dies  while  the  physician  sleeps; 
The  orphan  pines  while  the  oppressor  feeds; 
Justice  is  feasting  while  the  widow  weeps; 
Advice  is  sporting  while  infection  breeds."2 

Bewailing  her  fate  and  the  opportunity  which  led  Tar- 
quin  to  accomplish  her  ruin,  the  poor  Lucrece  sees  only 
the  bad  effects  of  opportunity  and  instead  of  cursing  alone 
the  criminal  intent  and  bad  motives  of  Tarquin,  she  per- 
sonifies Opportunity  to  upbraid  it,  as  the  friend  of  the 
opulent  and  powerful  alone.  She  laments  that  the 
humble  suppliant  sues  in  vain,  for  on  these,  as  she  views 
her  own  sad  lot,  Opportunity  turns  a  deaf  ear.  The 
orphan  pines  while  the  oppressor  feeds.  "Justice  is  feast- 
ing while  the  widow  weeps ;  advice  is  sporting  while  infec- 

1  Following  up  this  reasoning,  she  is  made  to  complain  further 
of  Opportunity,  in  the  next  verse,  as  follows: 
"Thou  makest  the  vestal  violate  her  oath; 
Thou  blowest  the  fire  when  temperance  is  thaw'd; 
Thou  smotherest  honesty,  thou  murder'st  troth; 
Thou  foul  abettor:   thou  notorious  bawd."     (883,  886.) 

'The  Rape  of  Lucrece,  904,  907. 


502  THE   LAW  IN  SHAKESPEARE. 

tion  breeds."  This,  of  course,  is  misanthropy,  but  under 
the  circumstances  it  could  not  be  presumed  that  Lucrece 
would  view  the  world  through  the  transparent  glasses  of 
a  beneficent  philosophy,  but  the  crimes  against  the  weak 
and  down-trodden  would  naturally  be  magnified  by  the 
unequal  gloss  of  her  horoscope,  superinduced  by  her  forced 
misery. 

Sec.  500.    Errors  by  opinion  bred. — 

"Time's  office  is  to  fine  the  hate  of  foes, 
To  eat  up  errors  by  opinion  bred, 
Not  spend  the  dowry  of  a  lawful  bed."1 

After  lamenting  that  Time,  through  his  servant  Oppor- 
tunity, had  chained  her  to  an  "endless  date  of  never- 
ending  woes,"  Lucrece  then  reflects  that  this  is  not  the 
proper  office  of  Time,  but  in  its  natural  effect  it  ends  the 
hate  of  foes,  eats  up  "errors  by  opinion  bred,"  without 
spending  the  dowry  of  a  lawful  bed.  Shakespeare  else- 
where refers  to  erroneous  opinions,  "recorded  for  a  prec- 
edent/' and  sagely  philosophizes  how,  when  this  is  done, 
"many  an  error,  by  the  same  example,  will  rush  into  the 
state."2  This  is  the  logical  conclusion  of  a  lawyer,  from 
the  premise  given,  for  it  is  the  experience  of  mankind, 
based  upon  a  similar  state  of  facts.  The  "dowry  of  a  law- 
ful bed"  is  the  right  to  the  undivided  society  and  love  of 
the  wife,  which  Lucrece  complains  that  Time  and  Oppor- 
tunity have  taken  from  the  lawful  possessor. 

Sec.  501.    Wronger  wronged  by  time. — 

"Time's  glory  is  to  calm  contending  kings, 
To  unmask  falsehood  and  bring  truth  to  light, 
To  stamp  the  seal  of  time  in  aged  things, 
To  wake  the  morn  and  sentinel  the  night, 
To  wrong  the  wronger  till  he  render  right."8 


1  The  Rape  of  Lucrece,  936,  938. 

2  Merchant  of  Venice,  Act  IV,  Scene  I. 

3  The  Rape  of  Lucrece,  939,  943. 


RAPE  OF  LUCRECE.  503 

Emerson  heard  a  sermon  by  a  minister  whose  ortho- 
doxy led  him  to  conclude  that  the  good  must  be  miserable 
on  this  earth ;  that  the  righteous  judgment  was  not  execu- 
ted here,  but  the  wicked  would  continue  successful,  until 
the  Last  Judgment.  This  reminded  him  of  the  fallacy 
of  this  argument  and  he  wrote  his  essay  on  "Compensa- 
tion." Shakespeare  grasped  this  great  truth,  centuries 
before  Emerson  wrote,  and  in  these  lines  he  placed  in  the 
mouth  of  the  wronged  Lucrece  the  same  philosophy.  He 
knew,  with  Emerson,  that  "the  specific  stripes  may  follow 
]ate  after  the  offense,  but  they  follow,  because  they  accom- 
pany it."  He  also  realized  that  "crime  and  punishment 
grew  out  of  one  stem."1  He  places  the  same  wisdom  in 
the  mouth  of  Lucrece  that  prompted  the  great  Emerson 
to  conclude  that  "every  act  rewards  itself"  and  with  the 
aid  of  Time,  "men  call  the  circumstance  the  retribution," 
which  is  often  spread  over  a  long  time.  Like  the  impres- 
sion on  the  wax  placed  on  legal  documents,  Time  stamps 
its  seal  on  aged  things  and  "Time's  glory"  is  to  "wrong 
the  wronger  till  he  render  right."  Time  will  not  only 
punish  him,  by  making  him  suffer,  as  he  makes  others 
suffer,2  but  by  the  fixed  law  of  compensation,  wrong  him, 
"till  he  render  right,"  or  make  full  and  adequate  restitu- 
tion. 

Sec.  502.    Case  past  help  of  law. — 

"Out,  idle  words,  servants  to  shallow  fools: 
Unprofitable  sounds,  weak  arbitrators : 
Busy  yourselves  in  skill-contending  schools ; 
Debate  where  leisure  serves  with  dull  debaters ; 
To  trembling  clients  be  you  mediators: 
For  me,  I  force  not  argument  a  straw, 
Since  that  my  case  is  past  the  help  of  law."3 

1  Emerson's  Essay,  Compensation. 

2  This  is  Doctor  Rolfe's  interpretation  of  these  words,  "Wrong 
the  Wronger."     (See  Rolfe's  Venus  and  Adonis,  p.  242.) 

'The  Rape  of  Lucrece,  1016,  1022. 


504  THE  LAW  IN  SHAKESPEARE. 

Lucrece,  in  these  lines,  concludes  that  when  the  heart 
is  so  full  of  contending  emotions  as  she  then  suffers,  mere 
words  are  too  weak  arbitrators  for  her  case.  Words  are 
all  right  for  dull  debaters,  or  scholars,  in  the  debates  of  the 
school-room,  but  not  for  cases  like  hers!  Words  would 
be  adequate  mediators  for  a  dubious,  trembling  client; 
but  not  for  one  who  had  lost  all  he  had  and  who  had  no 
more  to  lose.  Like  one  in  this  position,  whose  rights  had 
been  so  outraged  that  he  had  nothing  more  to  lose,  the  law 
could  furnish  him  no  remedy,  for  he  would  have  a  case 
that  would  be  "past  the  help  of  law."1 

Sec.  503.    Rightful  plea  for  justice — Denial  of. — 

"My  bloody  judge  forbade  my  tongue  to  speak; 
No  rightful  plea  might  plead  for  justice  there: 
His  scarlet  lust  came  evidence  to  swear 
That  my  poor  beauty  had  purloin'd  his  eyes; 
And  when  the  judge  is  robb'd  the  prisoner  dies."2 

The  adoption,  by  the  Poet,  of  the  comparison  of  Tar- 
quin  with  a  judge,  who  would  not  let  a  plea  for  justice 
be  entered,  in  the  narration  of  the  story  of  her  wrong  to 
her  husband,  by  Lucrece,  is  an  apt  illustration  of  the 
frequent  use  of  legal  terms,  by  Shakespeare,  to  make  the 
more  impressive  the  solemnity  of  the  scene  he  describes. 
A  judge  who  would  refuse  to  let  a  plea  for  justice  be  en- 
tered, would  of  course  be  a  most  unjust  judge.     Add  to 


1  In  narrating  her  shame  and  the  causes  thereof  to  her  hus- 
band and  his  friends,  Lucrece  concludes: 
.    .     .     "  'tis  a  meritorious  fair  design 
To  chase  injustice  with  revengeful  arms: 
Knights,  by  their  oaths,  should  right  poor  ladies'  harms. 

(1692-4.) 

The  help  that  thou  shalt  lend  me  comes  all  too  late,  yet  let 

"the  traitor  die; 
For  sparing  justice,  feeds  iniquity."     (1685,  1687.) 

'The  Rape  of  Lucrece,  1648,  1652. 


RAPE  OF  LUCRECE.  505 

this,  a  judge  who  admitted  his  lust  alone  to  prompt  him 
to  a  conclusion  as  the  only  witness  whose  evidence  he 
would  receive,  and  if  Tarquin  could  properly  be  likened 
to  the  incumbent  of  the  judgment  seat,  this  is  a  proper 
picture  to  draw  of  him.  His  lust  had  convinced  him 
that  he  was  blind  with  love  for  Lucrece.  All  the  attributes 
of  the  judge  were  thus  taken  from  him  and  of  course  no 
justice  could  be  meted  out  to  the  prisoner. 


CHAPTER  XL. 

"SONNETS." 

Sec.  504.  Determination  of  lease. 

505.  Improper  to  praise  by  hearsay. 

506.  Adverse  party  for  advocate. 

507.  Trial  between  Eye  and  Heart— Jury  of  Heart's  tenants. 

508.  No  cause  alleged  against  lawful  reason. 

509.  Grant  failing  for  want  of  consideration. 

510.  Forfeiture  of  limited  lease. 

511.  Forfeiting  mortgaged  property. 

Sec.  504.    Determination  of  lease.— 

" Against  this  coming  end  you  should  prepare, 
And  your  sweet  semblance  to  some  other  give. 
So  should  that  beauty  which  you  hold  in  lease 
Find  no  determination."1 

In  urging  that  posterity  is  the  only  avoidance  of  death, 
the  Poet  here  uses  legal  terms  pertaining  to  a  tenancy  for 
years  to  illustrate  to  beauty  the  necessity  of  procreation  to 
prolong  the  term  of  years. 

"Since  sweets  and  beauties  do  themselves  forsake 
And  die  as  fast  as  they  see  others  grow," 

it  is  suggested  in  these  lines  that  the  proper  preparation 
ought  to  be  made  to  prevent  the  coming  end,  so  that  the 
beauty  which  is  given  for  a  determinate  term  of  years  only, 
may  be  lengthened  into  a  term  without  end  or  determina- 
tion. 

When  real  estate  is  demised  for  a  term  of  years  it  is 
called  a  lease,  in  law,  and  the  end  of  the  leasehold  or 
tenancy  is  said  to  be  the  termination  of  the  tenancy.2 

1  Sonnets,  XIII,  3,  6. 

2Tiedeman's  R.  P.   (3d  ed.) ;   Taylor's  Land.  &  Ten. 

In  the  XVIII'  Sonnet,  it  is  said: 
"Rough  winds  do  shake  the  darling  buds  of  May, 
And  summer's  lease  hath  all  too  short  a  date."     (3,  4.) 

(506) 


SONNETS.  507 

Sec.  505.    Improper  to  praise  by  hearsay. — 

"0,  let  me,  true  in  love,  but  truly  write, 
And  then  believe  me,  my  love  is  as  fair 
As  any  mother's  child,  though  not  so  bright 
As  those  gold  candles  fix'd  in  heaven's  air: 
Let  them  say  more  that  like  of  hearsay  well ; 
I  will  not  praise,  that  purpose  not  to  sell."1 

After  first  promising  that  nothing  but  the  truth  will  be 
expressed,  as  to  his  "love,"  the  Poet  affirms,  on  the  best 
evidence,  as  to  things  actually  known,  that  he  is  as  fair 
as  any  mother's  son,  though  not  so  bright  as  the  fix'd 
stars  of  heaven.  He  will  not  affirm  anything  of  his  love, 
by  secondary  or  hearsay  evidence,  but  those  who  prefer 
hearsay  to  actual  facts,  could  say  much  more.  No  painted 
rhetoric  or  hearsay  evidence  are  needed  to  add  color  to  the 
description  given  by  the  actual  facts  concerning  the  sub- 
ject referred  to.  Things  for  sale  require  such  praise,  but 
not  those  things  that  are  not  intended  for  the  market. 

As  hearsay  evidence  is  incompetent  in  all  legal  proceed- 
ings2 and  opinions  are  only  admissible  by  experts,  or 
those  possessing  skill  or  experience  in  a  given  transac- 
tion, the  reference  in  these  lines  to  the  rule  requiring  the 
best  evidence  of  which  the  subject  is  susceptible,  seems 
apparent. 

Sec.  506.    Adverse  party  for  advocate. — 

"For  to  thy  sensual  fault  I  bring  in  sense — 
Thy  adverse  party  is  thy  advocate — 
And  'gainst  myself  a  lawful  plea  commence."3 

An  advocate  is  generally  defined  as  the  "patron  of  a 
cause,"  though  it  does  not  appear  that  the  patrons  called 
in  at  Rome  to  assist  the  cause  of  their  clients  were  called 
by  this  name.  The  term  Advocatus,  in  the  time  of  Cicero, 
was  not  applied  to  the  patron  or  orator  who  assisted  in  the 

1  Sonnets,  XXI,  9,  14. 

2Greenleaf  on  Evidence   (14th  ed.). 

3  Sonnets,  XXXV,  9,  11. 


508  THE  LAW  IN  SHAKESPEARE. 

cause  in  public,  but  rather  as  the  etymology  of  the  word 
would  indicate,  to  the  one  called  in  to  assist  at  the  trial  of 
the  cause.1 

"Sense,"  judgment  or  reason,  is  "called  in"  or  brought 
in,  as  it  were,  as  the  advocate  of  the  sensual  one,  and  in 
this  cause,  sense  is  the  adverse  party  to  the  sensual  one,  for 
whom  this  advocate  appears  and  at  once  enters  a  "lawful 
plea"  against  Shakespeare.  In  the  use  of  the  term  Advo- 
cate, the  Poet  uses  it  as  it  was  understood  at  Rome,  for  an 
advocate  was  not  the  orator  who  pleaded  in  the  cause,  but 
was  only  called  in  to  assist  at  the  hearing,  and  in  admitting 
that  such  an  advocate  could  urge  a  lawful  plea  against 
himself,  the  Poet  practically  confessed  the  weakness  of 
the  client  for  whom  "sense"  or  reason  was  called  into  the 
cause. 

Sec.  507.    Trial  between  eye  and  heart— jury  of  heart's 
tenants. — 

"Mine  eye  and  heart  are  at  a  mortal  war, 
How  to  divide  the  conquest  of  thy  sight; 
Mine  eye  my  heart  thy  picture's  sight  would  bar, 
My  heart  mine  eye  the  freedom  of  that  right. 
My  heart  doth  plead  that  thou  in  him  dost  lie, 
A  closet  never  pierced  with  crystal  eyes, 
But  the  defendant  doth  that  plea  deny, 
And  says  in  him  thy  fair  appearance  lies. 
To  'cide  this  title  is  impaneled 
A  quest  of  thoughts,  all  tenants  to  the  heart ; 
And  by  their  verdict  is  determined 
The  clear  eye's  moiety  and  the  dear  heart's  part: 


1Ulpian,  Dig.  50,  tit.  13;  Tacitus,  Annal.  X.  6. 
After  making  this  confession  of  sensuality,  the  Poet  in  the  next 
two  lines,  admits  that  he  experiences  contending  emotions  over 
the  fact 

"That  I  an  accessory  needs  must  be 

To  that  sweet  thief  which  hourly  robs  from  me."     (13,  14.) 
But  in  the  XL,  Sonnet,  he  concludes  that 
"I  do  forgive  thy  robbery,  gentle  thief, 
Although  thou  steal  thee  all  my  poverty."     (9,  10.) 


SONNETS.  509 

As  thus ;  mine  eye's  due  is  thine  outward  part, 
And  my  heart's  right  thine  inward  love  of  heart."1 

This  sonnet  illustrates  the  custom  of  the  Poet  to  illus- 
trate his  thoughts  with  legal  proceedings,  which  ever 
seemed  at  his  command.  In  these  lines  is  presented  the 
whole  array  of  legal  procedure,  in  a  cause  between  the  eye 
and  heart,  as  contending  parties,  over  the  right  to  the 
image  of  the  Poet's  friend,  including  the  pleas  filed,  the 
impaneling  of  a  jury  and  the  return  of  the  verdict. 

The  eye  contended  that  the  heart  had  no  right  to  the 
image,  while  the  heart  denied  the  eye  the  freedom  of  the 
sight  of  the  friend.  The  heart  asserted  the  better  title  to 
the  picture,  while  the  eye  denied  the  plea.  To  decide  the 
title,  a  jury  were  impannelled,  being  the  tenants  of  the 
heart,  who,  of  course  would  be  prejudiced  jurors.  By  their 
verdict,  which  in  the  orderly  course  of  such  legal  proceed- 
ings, would  follow  the  pleas  offered  by  the  rival  parties, 
it  was  decided  that  the  eye  was  entitled  to  the  outward 
vision,  while  the  heart  was  vested  with  the  inward  love 
of  the  heart  of  his  friend.  From  the  entering  of  the  plea, 
denied  by  the  defendant,  to  the  return  of  the  verdict,  this 
Sonnet  shows  a  wonderful  familiarity  with  legal  proceed- 
ings in  court,  and  follows  the  natural  order  of  a  trial,  at 
law.2 

Sec.  508.    No  cause  alleged  against  lawful  reason. — 

"Against  that  time  when  thought  shalt  strangely  pass, 
And  scarcely  greet  me  with  that  sun,  thine  eye, 
When  love,  converted  from  the  thing  it  was, 
Shall  reasons  find  of  settled  gravity; 
Against  that  time  do  I  ensconce  me  here 
Within  the  knowledge  of  mine  own  desert, 


1  Sonnets,  XL VI,  1,  14. 

2  It  is  surprising  that  Sewell  (2d  ed.)  and  Wyndham,  should 
conclude  that  " 'cide"  was  equivalent  to  "side,"  meaning  that 
the  jury  would  determine  between  the  one  side  or  the  other, 
for  the  term  clearly  is  a  contraction  of  the  word  "decide,"  which 
is  the  very  province  of  a  jury,  impannelled  as  this  jury  was. 


510  THE  LAW  IN  SHAKESPEARE. 

And  this  my  hand  against  myself  uprear, 
To  guard  the  lawful  reasons  on  thy  part: 
To  leave  poor  me  thou  hast  the  strength  of  laws, 
Since  why  to  love  I  can  allege  no  cause."1 

The  Poet  looks  forward  to  the  time  when  his  friend 
Southampton  will  be  separated  from  him,  for  the  latter's 
failure  to  dedicate  poems  to  him,  instead  of  dramas  for 
the  multitude.  But  the  reflection  that  he  is  still  true 
and  loyal  to  his  friend  and  his  own  conscience  will  com- 
fort Shakespeare  when  this  time  comes.  If  lawful  reasons 
are  urged  on  his  part,  the  Poet  will  raise  his  hand,  even 
against  himself,  to  enforce  the  rights  of  his  friend,  since 
his  cause  has  the  strength  of  the  law,  while  Shakespeare 
has  no  right  to  love  him.  When  law  is  on  one's  side  a 
good  cause  of  action  can  always  be  alleged,  but  when  no 
legal  reasons  can  be  given,  it  is  impossible  to  set  forth 
a  good  plea,  in  law.  This  is  the  conclusion  reached  in  this 
Sonnet. 

Sec.  509.    Grant  failing  for  want  of  consideration. — 

"For  how  do  I  hold  thee  but  by  thy  granting? 
And  for  that  riches  where  is  my  deserving? 
The  cause  of  this  fair  gift  in  me  is  wanting, 
And  so  my  patent  back  again  is  swerving."2 

A  patent  is  an  exclusive  right,  granted  by  an  official 
document  securing  to  the  grantee  the  exclusive  privilege 
to  the  thing  granted,  as  a  patent  to  land,  by  the  Govern- 
ment.3 

To  constitute  any  valid  grant,  based  upon  a  valuable 
consideration,  there  must  be  existing  such  consideration 
and  if  the  consideration  is  wanting,  the  grant  would  fail.4 
The  Poet  intends  to  illustrate,  by  the  use  of  the  legal  grant 
that  the  loss  of  his  friend's  love  is  owing  to  the  fact  that 


1  Sonnets,  XLIX,  5,  14. 

2  Sonnets,  LXXXVII  (5,  8). 
3Bouvier's  Law  Dictionary. 
'Tiedeman's  R.  P.   (3d  ed.). 


SONNETS.  511 

the  consideration  of  the  grant  from  himself  has  failed, 
because  he  is  wanting  in  the  personal  charms  and  gifts 
necessary  to  hold  his  love. 

Sec.  510.    Forfeiture  of  limited  lease. — 

"Not  mine  own  fears,  nor  the  prophetic  soul 
Of  the  wide  world  dreaming  on  things  to  come, 
Can  yet  the  lease  of  my  true  love  control, 
Supposed  as  forfeit  to  a  confined  doom."1 

These  lines  clearly  refer  to  a  conditional  or  determinate 
lease  of  realty,  which  is  a  contract  between  the  lessor  and 
the  lessee,  for  the  possession  of  land,  for  a  fixed  or  deter- 
minate period,  for  a  certain  consideration,  to  be  void,  or 
forfeited,  on  the  breach  of  some  certain  condition.2  The 
Poet  had  considered  his  love,  formerly  possessed,  forfeited 
and  ended,  by  Southampton's  confinement  in  the  Tower, 
but  on  the  death  of  Elizabeth,  the  supposedly  forfeited 
lease  or  tenancy  of  his  friend's  love,  becomes  again  a 
vitalized,  live  estate,  subject  to  no  limitations  or  for- 
feiture, in  law. 

Sec.  511.    Forfeiting  mortgaged  property. — 

"So,  now  I  have  confess'd  that  he  is  thine 
And  I  myself  am  mortgaged  to  thy  will, 
Myself  I'll  forfeit,  so  that  other  mine 
Thou  wilt  restore,  to  be  my  comfort  still."3 

This  verse  clearly  refers  to  the  confinement  of  South- 
ampton in  the  Tower  and  the  former  verse  expresses  the 
Poet's  desire  to  be  permitted  to  go  his  bail,  by  substituting 


1  Sonnets,  CVII  (1,  4). 

2  White,  Mines  &  Mining  Remedies,  Chap.  XI. 

Ib  the  CXXV,  Sonnet  the  same  kind  of  a  limited  lease  is  re- 
ferred to,  in  these  lines: 

"Have  I  not  seen  dwellers  on  form  and  favor, 
Lose  all  and  more,  by  paying  too  much  rent?"  (5,  6). 

•Sonnets,  CXXXIV   (1,  4). 


512  THE  LAW  IN  SHAKESPEARE. 

his  own  person  for  that  of  his  friend,  in  jail.  A  mortgage 
is  the  temporary  pledging  of  land  in  security  for  a  debt 
due  the  mortgagee,  by  the  mortgagor.1  The  land  itself, 
not  being  susceptible  of  a  manual  delivery,  the  mortgagee 
holds  the  mortgage  as  an  evidence  of  his  right  to  the 
land  as  security  for  his  debt,  until  it  is  paid.  The  only 
way  to  create  a  mortgage  in  early  times,  was  to  give  livery 
of  seisin  of  the  freehold  estate,  thus  passing  the  estate  to 
the  mortgagee.  On  breach  of  the  condition  of  the  mort- 
gage, to  pay  the  debt,  the  estate  was  forfeited  and  became 
the  absolute  property  of  the  mortgagee.  And  the  Poet 
here  proffers  to  forfeit  himself  as  security  for  his  friend, 
recognizing  that  the  condition  of  the  obligation  is  broken 


Tiedeman,  R.  P.   (3d  ed.). 


INDEX. 


References  are  to  Section*. 


Abatement,  pleas  in,  473. 
Abstract   and   brief,   179. 
Accessory  before  the  fact,  315. 
Accomplice,  'peaching  on,  219. 
Accomplices,  233. 
Accused,  acquittal   of,  314. 
Accuser  and   accused,   188. 
Accusing  counselor,  354. 
Accusing  one  face  to  face,  353. 
Acquittal,  of  accused,  314. 
Acquittances,  73. 
Act  distinguished  from  intent,  35. 
Acting  as  both  judge  and  juror, 

355. 
Action,  238. 
Action    of    battery,    17. 
Action  of  slander,  23. 
Action   on   the   case,    155. 
"Action-taking"   knave,   448. 
Acts  by  attorneys,  114. 
Acts  of  Parliament,  305. 
Adjournment  of  court,  344. 
Admission  against  interest,  11. 
Adultery,  256. 
Adversaries  at  law,  128. 
Adverse  party  for  advocate,  206. 
Advocate,  417. 

Advocate,  adverse  party  as,  506. 
"A   friend    i'    the   court,"    244. 
Agent,  161. 

Agreement,  articles  of,  276. 
Alias,  390. 
Alien,  227. 

Amercement  by  fine,  457. 
Ancestors,  253. 


Answer,  213. 

Answering  public  laws,  387. 

Antipathetic  criminal,  Iago,  the, 
482. 

Antonio's  confession  of  the  bond, 
94. 

Antony's  suicide,  felo  de  se,  415. 

Antony's  tribute  to  Brutus'  char- 
acter, 409. 

Apparitors,  duties  of,  74. 

Appeal   by  king's  ring,  357. 

Appeal,  motion  to  dismiss,  342. 

Appearance  in  court,  340. 

Appellant,  187. 

Applying  judgment  to  Judge,  441. 

Apprehend  in  the  fact,  283. 

Apprentice,  term  of,  222. 

Appurtenances,  467. 

Arbitration,  175. 

Arraignment   of  Hermione,   143. 

Arrest,    152. 

Arrest  on  mesne  process,  154. 

Arrest  upon  "hue  and  cry,"  223. 

Arrested  in  the  act,  148. 

Articles  of  agreement,  276. 

Assault  upon  Lucrece,  497. 

Assurance,  security,  234. 

Assurance,  settlement  by  way  of, 
132. 

Athenian  law,  jurisdiction  of,  53. 

Athenian  law,  parent's  right  of 
infanticide  under,  55. 

Attachment,   151. 

Attainder,  62. 

Attestation,  362. 

Attestation  by  notary,  496. 

(513) 


514 


INDEX. 


References  are  to  Sections. 


Attestation   by   sight   and   heal- 
ing, 372. 
Attorney,  loyalty  of,  34. 
Attorneys,  207. 
Attorneys,  acts  by,  114. 
Attorney-general,   199. 
Audi  alteram  partem,  221. 
Avouch,  316. 


Bail,    300. 

Bail  in  criminal  case,  429. 

Bankrupt,  109. 

Bargain  and  sale,  277. 

Bastard,  disinheriting,  172. 

Bastard's  right  of  inheritance, 
169. 

Battery,  action  of,  17. 

Battle,  trial  by,  191. 

Bawds  not  competent  witnesses, 
384. 

Bearing  false  witness,  291. 

Bearing  testimony,  262. 

Be  it  known  by  these  presents, 
108. 

Bencher,  392. 

Benefit  of  clergy,  297. 

Benefit  of  sanctuary,  324. 

Bequest,  105. 

Bier,  ordeal  of,  312a. 

Bigamy,  326. 

Bill  of  lading,  437. 

Bills  against  ecclesiastics,  249. 

Biting  statutes,  295. 

Boiling  in  oil,  torture  by,  146. 

Bond,  86. 

Bond,  Antonio's  confession  of,  94. 

Bond,  breach  of,  80. 

Bond    to    keep    peace,    454. 

Bondman,  280. 

Bourn,  410. 

Brabantio's  wrong,  Duke's  prom- 
ise to  redress,  478. 

Brawl,  268. 


Breach  of  bond,  penalty  for,  80. 

Breach  of  peace,  39. 

Breach  of  promise,  36-153. 

Breaking  laws,  205. 

Bribes,    289. 

Brief  and  abstract,  179. 

Broken  bond,  double  penalty  on, 
491. 

Broker,  228. 

Brutus'  crime,  idealism  the  basis 
of,    400. 

Brutus'  murder,  people's  cause 
the  motive  for,  404. 

Brutus'  struggle  with  his  con- 
science,  403. 

Buckingham's  trial  for  treason, 
334. 

Burglary,  preliminary  examina- 
tion for,  48. 


Caesar's   will,   407. 

Cannon  of  the  law,  178. 

Capital  crimes,  257. 

Case,  lawyer's  duty  to  under- 
stand, 419. 

Case  past  help  of  law,  502. 

Cassius'  suggestion  of  the  crime, 
402. 

Cassius,  the  typical  criminal 
revolutionist,   401. 

Cause  alleged  against  lawful  rea- 
son, 508. 

Challenging  prejudiced  judge, 
338. 

Charter,  90. 

Chattels,  133. 

Child  begot  when  father  not  in 
tra  quatuor  maria,  170. 

Child  born  in  prison,  141. 

Child,  status  of  under  Greek  law, 
54. 


INDEX. 


515 


References 

Child's    marriage,    parents'    con- 
sent  to,   57. 
Children,  law  of,  405. 
Client    wrecked    when    attorney 

mute,  489. 
Clothing  villainy  with  holy  writ, 

318. 
"Come  into  court,"  335. 
Comitia,  trial  by,  398. 
Commission  for  office,  347. 
Commitment     for    contempt    of 

court,  245. 
Commitment  to  jail,  142. 
Common,  70. 

Common,   land   held   in,   293. 
Common-law   marriage  contract, 

29. 
Commutation  of  punishment,  101. 
Complaint,  391. 
Compounding  crime,  129. 
Compromise,    275. 
Compromising  slanders,  7. 
Concubine,  307. 
Condemned  woman's  privilege  of 

pregnancy,  274. 
Condition  of  wager  contract,  418. 
Confession,   50. 
Confession  of  guilt,  33. 
Confirmation,  title  by,  302. 
Confiscation  of  property,  1. 
Consanguinity,  370. 
Consideration,  grant  failing  for 

want   of,   509. 
Conspiracy,  216. 
Constable,  qualifications  of,  42. 
Contempt    of    court,    6-245. 
Contempt,  prosecution  for,  433. 
Contract,  270. 
Contract  of  marriage,  3. 
Contrary  to  form  of  law,  287. 
Controversy,  judgment  on,  167. 
Conveyance  by  seal-manual,  490. 
Conveyance  in  use,  102. 


are  to  Sections. 

Conviction,   death   without   law- 
ful, 322. 
Copyhold,  165. 
Corrupted  justice,  330. 
Counsellor,  472. 
Count,  extra  judicial  confession 

on,  50. 
Counterfeit,  231. 
Course  of  law,  85. 
Court,  adjournment  of,  344. 
"Court,  a  friend  i'  the,"  244. 
Court,  appearance  in,   340. 
Court,  contempt  of,  6. 
Court,  Inns  of,  241. 
Court,  issue  before,  91. 
Court-leet,   127. 
Court,  sessions  of,  337. 
Court,  vacations  of,  112. 
Courts  of  inquiry,  law  days  of, 

483. 
Covenant,  204. 
Craving   the  law,   97. 
Crime,  compounding,  129. 
Crime,  motive  for,  258. 
Crime  of  perjury,  71. 
Crime,    the    basis    of    Richard's 

character,  310. 
Crimes,  214. 
Crimes    unwhipped    by    justice, 

449. 
Criminal  case,  standing  mute  in, 

209. 
Criminal    instinct,    development 

of,  436. 
Criminals,    identification    of    by 

picture,   447. 
"Crowner's-quest   law,"    474. 
Custom,  shaping  laws,  21. 
Cynics    views    of    law,    383. 


Damage  and  indemnity  of  war, 
363. 


516 


INDEX. 


References  are 

Day  of  trial,  212. 

Dead  laws,  20. 

Death  by  judicial  sentence,  232. 

Death  by  the  wheel,  397. 

Death  penalty  for  homicide,  374. 

Death  without  lawful  conviction, 

322. 
Debtor   overpassing   bound,   423. 
Debtor's  dungeon,  154. 
Decree    of    divorce    from    Kath- 

erine,  349. 
Decrees,   60. 
Deed,   label   to,   461. 
Deed   of  gift,   103. 
Defending  manslaughter,  379. 
Demesne  lands,  424. 
Demise,  329. 
Dep  rtments      of      Government 

working  harmoniously,  255. 
Deposing,  according  to  law,  190. 
Descent,  120. 

Descent  to  eldest  son,  168. 
Desdemona,  sequestration 

against,  481. 
Desdemona's   evidence,   Othello's 

election  to  stand  upon,  480. 
Desdemona's  seduction,  proof  re- 
quired of,  479. 
Detecting  crime,  468. 
Determination  of  lease,  504. 
Determining  causes,  298. 
Development  of  criminal  instinct, 

436. 
Dilatory  pleas,  343. 
Disinheriting  bastard,  172. 
Disinheriting  heir,  303. 
Disputing  with  lunatic,   317. 
Distraining  property,   265. 
Divesting  property,  260-443. 
Divine  law  against  murder,  323. 
Divorce,  125. 
Double  penalty  on  broken  bond, 

491. 


to  Sections. 

Dowry,  66. 

Duchess    of    Gloster's    sentence, 

285. 
Duke's  promise  to  redress  Bra- 

bantio's  wrong,  478. 
Duties  of  solicitor,  67. 
Duties  of  the  night  watch,  43. 
Dying  declarations,  193a. 

E 

Earnest  to  bind  bargain,  150. 

Eating  flesh  contrary  to  law,  239. 

Ecclesiastics,  Henry  V's  favor  to- 
ward,  250. 

Ecclesiastics,   laws  against,   249. 

Effect  of  error,  408. 

Effect  of  legal  precedent,  99. 

Egress,  right  of,  8. 

Election  to  act  in  given  way,  416. 

Elizabeth's  plea  of  sanctuary, 
311. 

Encroachment  on  Prince's  right, 
427. 

Endowment,  38. 

Enfeoffment,    226. 

Enfranchising  one,  75. 

Entailed  property,  123. 

Entailment  of  estate,  444. 

Equal  rank  in  trial  by  battle, 
453. 

Equality  of  justice,  31. 

Equity,  177. 

Errors  by  opinion  bred,  500. 

Estate,  158. 

Estate,  entailment  of,  444. 

Estate  tail  upon  condition,   304. 

Evidence,  124. 

Evidence  by  interested  party, 
471. 

Evidence,  extorting  on  rack,  82. 

Examination  before  magistrate, 
46. 

Examining  justice,  115. 


INDEX. 


517 


References  are 

Exceptions,  10. 
Execution,  159. 
Execution  of  contract  by  parties 

interchangeably,  368. 
Executioner,  292. 
Executors,  208. 
Extendi  facias,  writ  of,  111. 


to  Sections. 


Factor,   broker,   228. 

Failure  to  speak  in  criminal  case, 

209. 
"Faitors,"  240. 
False  imprisonment,  44. 
False    indictment    on    suborned 

testimony,  486. 
False  testimony,  51. 
Falstaff  s  commitment  to  prison, 

247. 
Fee,  pleading  for,  56. 
Fee-simple,   9. 
Fee-farm,  kiss  in,  367. 
Fees,  of  prisoners,  138. 
Felo  de  se,   415. 
Felon  in  irons,  381. 
Fighting    in    King's    palace    or 

presence,  272. 
Fine,  202. 

Fine,  amercement  by,  457. 
Fine  and  recovery,  9. 
Forfeiters,  421. 
Forfeiting    mortgaged    property, 

511. 
Forfeiture  of  lands,  110. 
Forfeiture  of  limited  lease,  510. 
Forfeiture,   plea  of,   84. 
Forgeries,  466. 
Frailty  of  laws,  22. 
Frankleyn,    422. 
Fratricide,  470. 


Gift,  deed  of,  103. 

Goddess  of  Justice  abandoning 
earth,  431. 

Goneril,  imaginary  trial  of,  452. 

Grand  jury,    15-220. 

Grant  failing  for  want  of  consid- 
eration, 509. 

Greek  law,  parent  and  child  un- 
der, 54. 

Guiderius'  defense  of  his  crime, 
425. 

Guilt,  confession  of,  33. 

Guilty  conscience,  320. 

H 

Hamlet's  legal  comments  on  the 
skull,   475. 

Hamlet's  survivorship  and  dis- 
posal of  the  crown,  476. 

Hand  and  seal,  341. 

Hearsay,  praising  by,  505. 

Heir,  106. 

Henry  V's  favor  toward  ecclesi- 
astics, 250. 

Hereditary   taints,   376. 

Heresy,   356. 

Hermione,  arraignment  of,  143. 

Holy  human  law,  495. 

Homage,  1. 

Homicide,  264. 

Homicide,  death  penalty  for,  374. 

Householder,   47. 

"Hue  and  cry,"  arrest  upon,  223. 

I 

Iago,     the     cynic     antipathetic 

criminal,    482. 
Iago's  crime  against  Othello,  484. 
Idealism    the    basis    of    Brutus' 

crime,    400. 


518 


INDEX. 


References  are 

Identifying  criminals  by  pic- 
tures, 447. 

Imaginary  trial  of  Goneril,  452. 

Impeachment,   117-189. 

Impounding  strays,  254. 

Impressment  for  military  serv- 
ice, 361. 

Improper  conduct,  exceptions  to, 
10. 

Incest,  435. 

Intra  quatuor  maria,  child  begot 
when    father   not,    170. 

In  manner  and  form,  64. 

Indemnity  of  war,  363. 

Indenture,    180. 

Indictment,  145. 

Infamy,  236. 

Infanticide,  parent's  right  of,  by 
Athenian  law,  55. 

Inheritance,  66. 

Inheritance,  bastard's  right  of, 
169. 

Inheritance  by  next  of  blood,  492. 

Inns  of  court,  241. 

Instigation  of  Macbeth's  crime, 
160. 

Insurrectionary  bills,  248. 

Inter-regnum,  301. 

Intent  distinguished  from  act,  35. 

Interrogatories,    182. 

Inventory,  346. 

Invoking  justice  from  Heaven, 
430. 

Issue  before  the  court,  91. 

Italian  law  against  sale  of  poison, 
462. 


Jail,  commitment  to,  142. 
Joint  and  corporate  action,  375. 
Jointure,  113. 
Jourdemayn,    case    of    Margery, 

278. 


to  Sections. 

Judge   cannot   right  own  cause, 

.    487. 

Judge,     challenging    prejudiced, 

338. 
Judgment  applied  to  Judge,  441. 
Judgment,  plea  for,  95. 
Judgment,  Portia's,  on  the  bond, 

100. 
Judgment,  unreversed,  4. 
Judicial  sentence,  death  by,  232. 
Jurisdiction  of  Athenian  law,  53. 
Jurisdiction  regal,  296. 
Jury  of  heart's  tenants,  507. 
Jury  system,  frailty  of,  22. 
Justice  abandoning  earth,  431. 
Justice,  equality  of,  31. 
Justice     feasting     while     widow 

weeps,  499. 
Justice,   modesty   of,   442. 
Justice  of  Shylock's  plea,  96. 
Justice,  plea  for,  30. 
Justice    residing    between    right 

and  wrong,  360. 
Justice,  scales  of,  52. 
Justicer,  426. 
Justification   of   one   condemned 

by  law,  286. 

K 

Keeping  the  peace,  185. 

"King  can  do  no  wrong,"  406. 

King,  guardian  of  heirs  of  for- 
tune, 116. 

King's  prerogative,  140. 

King's  presence,  fighting  in,  272. 

King's  right  to  prisoner  under 
military   law,   217. 

Killing  in  self-defense,  380. 

Kiss  in  fee-farm,   367. 


Label  appended  to  deed,  461. 
Laborers  and  mechanics,  statutes 
of,  399. 


INDEX. 


519 


References  are 

Lady  Grey's  suit  for  husband's 
lands,  306. 

Land  held  in  common,  293. 

Landed  'squire,  173. 

Landlord,   195. 

Lands,  forfeiture  of,  110. 

Law,  a  gazing  stock,  when  not 
enforced,  32. 

Law,  adversaries  at,  128. 

Law,  against  eating  flesh,  239. 

Law  and  heraldry,  464. 

Law,  contrary  to  form  of,  287. 

Law,   course   of,   85. 

Law,  craving  the,  97. 

Law,  cynic's  views  of,  383. 

Law  days  of  courts  of  inquiry, 
483. 

Law  giver  unable  to  enforce  law, 
488. 

Law  is  strict,  382. 

Law,  jurisdiction  of  Athenian,  53. 

Law,  limitation  of,  58. 

Law  no  respector  of  persons,  246. 

Law  of  children,  405. 

Law  of  God  and  man,  313. 

Law,  penalty  of,  61. 

Law,  pity  the  virtue  of,  377. 

Law,  plunging  into,  378. 

Law,  poor  man's  right  in,  438. 

Law,  prostitution  before,  24. 

Law,  standing  for,  87. 

Law,  terms  of,  19. 

Law,  time  overthrows,  135. 

Law,  windy  side  of,  16. 

Lawful  act,  121. 

Lawful  killing,  not  murder,  434. 

"Law's  delay,"  218. 

Laws,  frailty  of,  22. 

Laws  of  land  service,  237. 

Laws,  protection  of  marital  rela- 
tion, 364. 

Law's  redress  of  wrongs,  184. 

Laws,  shaped  by  custom,  21. 


to  Sections. 

Laws,  that  are  dead,  20. 

Lawyer's  duty  to  understand 
case,  419. 

Lawyer's  points,  147. 

Lease,  determination  of,  504. 

Lease,  forfeiture  of  limited,  510. 

Lease,  tenement,  196. 

Leaving  property  in  use,  411. 

Legitimacy  of  child  born  during 
wedlock,  171. 

Lent,  law  against  eating  flesh 
during,  239. 

Lent,  sales  of  meat  during,  294. 

Letters-patent,  200. 

Levitical  law  against  niece  mar- 
rying uncle,  327. 

Levying  sums  of  money,  288. 

Lex  terra  salica  explained,  252. 

Libelling  the  senate,  432. 

Life  tenure,  sale  of,  456. 

Limitation  of  municipal  law,  58. 

Litigious  peace,  439. 

Livery,   206. 

Loving  against  law  and  duty,  493. 

Loyalty  of  attorney,  34. 

Lucrece,  assault  upon,   497. 

Lunatic,  disputing  with,  317. 

M 

Macbeth's  crime,   instigation  of, 

160. 
Magical  arts,  149. 
Magistrate,    examination   before, 

46. 
Maiden-rent,  299. 
Maiming,  229. 
Malefactor,  414. 
Malice,  164. 
Manacles,  389. 
Manly  combat,  trial  by,  49. 
Manor-court,   127. 
Manors,  215. 


520 


INDEX. 


References  are 

Manors,     wasting     in     military 
preparations,  333. 

Margery  Jourdemayn's  case,  278. 

Marital  relation,  laws  protection 
of,  364. 

Marriage,  contract  of,  3. 

Marriage   to   prostitute,   punish- 
ment by,  37. 

Martial  law,  263. 

Master,   servant  assaulting,   130. 

Mercy,  Portia's  plea  for,  93. 

Mesne  process,  arrest  on,  154. 

Military  law,  king's  right  to  pris- 
oners under,  217. 

Misdemeanors,  14. 

Misprison,  12. 

Modesty  of  justice,  442. 

Moiety,  89. 

Money  paid  in  earnest,  259. 

Mortgaged    property,    forfeiture 
of,  511. 

Motion  to  dismiss  appeal,  342. 

Motive  for  crime,  258. 

Movables,  325. 

Murder,  163. 

Murder,  divine  law  against,  323. 

Murder,  lawful  killing  not,  434. 

Murder  to  kill  murderer  illegally, 
458. 

Murder,  warrant  not  protection 
for,  319. 

N 

Nature  of  Shylock's  suit,  92. 
Negligence     distinguished     from 

willfulness,  137. 
New  plea,  setting  up,  5. 
Night  watch,  duties  of,  43. 
No  corrupted  justice  above,  471. 
No  slander  to  speak  the  truth, 

460. 
Non-suit,  477. 


to  Sections. 

Not  guilty,  139. 

Notary,  attestation  by,  496. 

O 

Oath,  subscribing  to,  59. 
Oath,  witness',  2. 
Open  to  the  law,  281. 
Opportunity    spurns    right    and 

law,   498. 
Ordeal,  312a. 
Othello's  election  to  stand  upon 

Desdemona's  evidence,  480. 
Outlaw,  269. 

P 
Packing  a  witness,  134. 
Pardon,  plea  for,  26. 
Parent  and   child,   under   Greek 

law,  54. 
Parents'  consent  to  child's  mar- 
riage, 57. 
Parents'  right  of  infanticide  by 

Athenian  law,  55. 
Parliament,  acts  of,  305. 
Parricide,  446. 
Partners,  271. 
Party  plaintiff,  18. 
Party-verdict,  192. 
Pawn,  373. 

Peace,  bond  to  keep,  454. 
Peace,  breach  of,  39. 
'Peaching  on  accomplice,  219. 
Penalty  of  the  law,  61. 
People's  cause  motive  for  Brutus' 

murder,   404. 
Per  se,  359. 
Perjury,  291. 
Perjury,  crime  of,  71. 
Pictures,   to    identify   criminals, 

447. 
Piercing  statutes,  388. 
Pillory,  punishment  by,  131 
Pity  the  virtue  of  law,  377» 
Plaintiff,  18. 
Plea  for  judgment,  95. 


INDEX. 


521 


References  are 

Plea  for  justice,  30. 
Plea  for  pardon,  26. 
Plea  of  forfeiture,  84. 
Pleaders,  393. 
Pleading  cause,  336. 
Pleading  false  titles,  385. 
Pleading  for  fee,  56. 
Pleading  for  right  in  wilderness 

without  law,  494. 
Pleas  in  abatement,  473. 
Plunging  into  law,  378. 
Poison,  Italian  law  against  sale 

of,  462. 
Poor  man's  right  in  law,  438. 
Portia's  judgment  on  the  bond, 

100. 
Portia's  plea  for  mercy,  93. 
Possessed,  197. 
Post,    of    sheriff,    13. 
Praemunire,  writ  of,  348. 
Praise  by  hearsay,  505. 
Precedent,  effect  of  legal,  99. 
Pregnancy,   condemned   woman's 

privilege  of,  274. 
Preliminary  examination  for  bur. 

glary,  48. 
Preliminary  hearing,  45. 
Premises,  118. 
Prerogative  of  King,  140. 
Pressing   to    death,    punishment  \ 

by,  40. 
Primogeniture,  104. 
Prince's  right,  encroachment  on 

427. 
Prison,  child  born  in,  141. 
Prisoner,  157. 
Prisoners'   fees,  138. 
Privileged  man,  365. 
Privity,   332. 
Process,  396. 
Proclamation,  266. 
Proof,  11. 
Proof  of  facts  apparent,   428. 


to  Sections. 

Proof    required    of   Desdemona's 
seduction,  479. 

Proof    of    guilt    beyond    reason- 
able doubt,  485. 

Property,  confiscation  of,  1. 

Prorogue,  413. 

Prosecution  for  contempt,  433. 

Prostitution  before  the  law,  24. 

Punishment  by  the  pillory.   131. 

Punishment  by  marriage  to  pros- 
titute, 37. 

Punishment  by  pressing  to  death, 
40. 

Punishment  by  stocks,  235. 

Punishment,  commutation  of, 
101. 

Punishment    for    seduction,    by 
Venetian  law,  27. 

Purging  impeachment,  463. 

Purging  one's  self,  351. 

Pursuivant,   279. 

Q 

Qualifications  of  constable,  42. 
Quid  pro  quo,  273. 
Quietus,  469. 
Quillets  of  the  law,  77. 


Rack,  extorting  evidence  on,  82. 

Rape,  181. 

Ravishment,  358. 

Reasonable  doubt,  proof  of  guilt 

beyond,  485. 
Receipt,  72. 
Regress,   right  of,  8. 
Rejoinders,  371. 
Remainders,  123. 
Repeal,  203. 
Reprisal,  230. 
Reservation  in  grant,  445. 
Resisting  law,  395. 


522 


INDEX. 


References  are  to  Sections. 


Respondeat  superior,  not  appli- 
cable to  king  and  subject,  261. 

Retainers,  339. 

Reversion,  193. 

Rewards,  321. 

Richard  III  an  embryonic  crim- 
inal, 308. 

Richard  Ill's  crimes  prompted  by 
his  isolation,  312. 

Richard  Ill's  inherited  criminal 
instinct,  328. 

Richard  Ill's  morbid  vanity,  309. 

Right  of  egress  and  regress,  8. 

Right  warring  with  right,  369. 

Rightful  plea  for  justice,  503. 

Righting  grand  jury,  220. 

Rigour  of  the  law,  282. 

Riot,  243. 

Robbery,  224. 

Rotten  case,  242. 

Royalties,  198. 

S 

Sanctuary,  benefit  of,  324. 
Sanctuary,    Elizabeth's    plea    of, 

311. 
Sale  of  life  tenure,  456. 
Sale  of  poison  contrary  to  Italian 

law,  462. 
Sales  of  meat  during  lent,  294. 
Salic  law  and  Henry  V's  claim 

to  France,  251. 
Scales  of  justice,  52. 
Scope  of  justice,  386. 
Seal,  88. 

Seal-Manual,  conveyance  by,  491. 
Sealing  written   instrument,   81. 
Seditious  bills,  248. 
Seduction.  174. 

Seduction,  punishment  for,  27. 
Seize,    201. 
Self-defense,  killing  in,  380. 


Sentence,  25. 

Sentence  of  Duchess  of  Gloster, 
285. 

Sequestration  against  Desde- 
mona,  481. 

Servant   assaulting   master,   130. 

Serving  clients,  440. 

Sessions  of  court,  337. 

Setting  up  new  plea,  5. 

Severalty,  70. 

Severe  judge,  28. 

Sheriff's   post,   13. 

Shylock's  plea,  justice  of,  96. 

Shylock's   suit,   nature   of,   92. 

Signories,   210. 

Simony,   350. 

Single  ownership,  166. 

Skull,  Hamlet's  legal   comments 
on,  475. 

Slander,  action  of,  23. 

Slander,  prosperity  of,  78a. 

Slanders,  compromising,  7. 

Solicitor,  duties  of,  67. 

Source  of  law,  295. 

Sovereign  power,  186. 

Specialties,  73. 

'Squire,  173. 

Standing  mute  in  criminal  case, 
209. 

Standing  for  law,  87. 

Star-chamber,  6. 

Statute-caps,  78. 

Statutes  of  laborers  and  mechan- 
ics,  399. 

Statutes  of  the  street,  41. 

Stocks,  punishment  by,  235. 

Strays,  impounding,  254. 

Streets,  statutes  of,  41. 

Subornation,  156. 

Suborned  testimony,  false  indict- 
ment on,  486. 

Subscribing  to  oath,  59. 

Summoners,  450. 


INDEX. 


523 


References  are  to  Sections. 

Surety,  68. 

Surmises  not  proof,  144. 
Swords  as  laws  during  Richard's 
reign,  331. 


Tainted  plea,  82a. 
Taken  with  the  manner,  63. 
Tarpeian  Rock,  394. 
Taxes,  290. 
Tender,  98. 
Tendered,  4. 
Tenement,  196. 
Term  of  apprentice,  222. 
Terms  of  the  law,  19. 
Testament,  107. 
Theft,   119. 

Thievery,  justified,  383. 
Third-borow,    126. 
Time    overthrows    law    and    cus- 
tom, 135. 
Time  wronging  wronger,  501. 
Tithes,  183. 
Title,  69. 
Title  by  confirmation,   302. 

Title    by    descent    and    purchase 
distinguished,  412. 

Torture  by  boiling  in  oil,  146. 

Treason,  76. 

Trespass,  136. 

Trespass  vi  et  armis,  465. 

Trial  at  law,  345. 

Trial  by  battle,  191. 

Trial   by  battle,   equal   rank   in, 
453. 

Trial  by  comitia,  398. 

Trial  by  eye  and  heart,  507. 

Trial  by  manly  combat,  49. 

Trial  day,  212. 

Trial  of  Buckingham  for  treason, 
334. 

Tripartite  agreements,  225. 

Truant  in  the  law,  267. 


Trust    from    fiduciary    relation, 

162. 
Truth,  no  slander  to  speak,  460. 
Tybalt's  death  murder  at 

Romeo's  hands,  459. 

U 

Under  gage,  211. 
Underwriting  one,  366. 
Uulawful  intent,  122. 
Unreversed  judgment,  4. 
Unwhipped  crimes,  449. 
Use,  conveyance  in,  102. 
Use,  leaving  property  in,  411. 
Usurer,  83. 
Usurpation,  176. 


Vacations  of  court,  112. 
Venetian  law,  against  seduction, 

27. 
Venue  and  offense  charged,  651. 
Verdict,  192. 
Verdict  based  on  perjury,  352. 

W 

Wager    contract,    conditions    of, 

418. 
Wards,  heirs  of  fortune,  kings, 

116. 
Warrant    no    protection    against 

murder,  319. 
Warranty,  79. 
Waste,  9. 

Waste  upon  real  estate,  194. 
Wasting  manors  in  military 

preparations,  333. 
Wedlock,     legitimacy     of     child 

born  during,  171. 
Wheel,  death  by  the,  397. 


524 


INDEX. 


References  are 

"Whipped  from  tithing  to  tith- 
ing," 451. 

Wife's  legal  status,  455. 

Wilderness  without  law,  no  right 
in,  494. 

Willfulness,  negligence  distin- 
guished from,  137. 

Windy  side  of  the  law,  16. 

Witchcraft,  149. 

Witness,  oath  of,  2. 

Witness,  packing,  134. 


to  Sections. 

Witness  to  action,  420. 
Witnesses,  bawds  not  competent, 

384. 
Writ,  extendi  facias,  111. 
Writ  of  praemunire,  348. 
Written  instrument,  sealing,  81. 
Wronger  wronged  by  time,  501. 


York's  title  to  the  crown  of  Eng- 
land, 284. 


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